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Full text of "North Carolina Register v.9 no. 14 (10/14/1994)"

■£3R/kf>J/ '74-34- /-AZ- /rt&7/ 



The 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



PROPOSED RULES 

Dietetics/Nutrition 

Environment, Health, and Natural Resources 

Human Resources 

Insurance 

Justice 

Labor 

Medical Examiners 

Mortuary Science 

Secretary of State 

Transportation 




Rl 



IVED 



m 



1AW LIBRARY 



mmt- 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: October 14, 1994 



Volume 9 • Issue 14 • Pages 1063 - 1151 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Registers available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 1 5 days must 
elapse following publication of the notice in the North Carolina 
RegisterbefoK the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempo- 
rary rules. Within 24 hours of submission to OAH, the Codifier of 
Rules must review the agency's written statement of findings of need 
for the temporary rule pursuant to the provisions in G.S. 150B-2 1 . 1 . If 
the Codifier determines that the findings meet the criteria in G.S 
150B-21.1, the rule is entered into the NCAC. If the Codifier 
determines that the findings do not meet the criteria, the rule is returned 
to the agency. The agency may supplement its findings and resubmit 
the temporary rule for an additional review or the agency may respond 
that it will remain with its initial position. The Codifier, thereafter, will 
enter the rule into the NCAC. A temporary rule becomes effective 
either when the Codifier of Rules enters the rule in the Code or on the 
sixth business day after the agency resubmits the rule without change 
The temporary rule is in effect for the period specified in the rule or 1 80 
days, whichever is less. An agency adopting a temporary rule must 
begin rule-making procedures on the permanent rule at the same time 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilation 
and index of the administrative rules of 25 state agencies and 38 
occupational licensing boards. The NCAC comprises approximately 
15,000 letter size, single spaced pages of material of which approxi- 
mately 35% is changed annually. Compilation and publication of the 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i; 
assigned a separate title which is further broken down by chapters 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of two 
dollars and 50 cents ($2.50) for 10 pages or less, plus fifteer 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling ir 
excess of 15,000 pages. It is supplemented monthly witl 
replacement pages. A one year subscription to the ful 
publication including supplements can be purchased foi 
seven hundred and fifty dollars ($750.00). Individual vol 
umes may also be purchased with supplement service. Re 
newal subscriptions for supplements to the initial publicatioi 
are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, pagi 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volumi 
1, Issue 1, pages 101 through 201 ofthcNorthCarolinaRegisterissuei 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. PROPOSED RULES 
Environment, Health, and 
Natural Resources 

Health Services 1112 

Marine Fisheries Commission ... 1109 

Human Resources 
Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 1063 

Insurance 
Actuarial Services Division .... 1072 

Agent Services Division 1065 

Life and Health Division 1071 

Justice 

N.C. Sheriffs' Education & Training 
Standards Commission 1075 

Labor 
Boiler and Pressure Vessel 1076 

Licensing Boards 

Dietetics/Nutrition 1115 

Medical Examiners 1119 

Mortuary Science 1120 

Secretary of State 
Notary Public Division 1112 

Transportation 
Highways, Division of 1114 

II. RRC OBJECTIONS 1122 

III. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1124 

Text of Selected Decisions 

93 OSP 1001 . 1136 

93 OSP 1505 1141 

IV. CUMULATIVE INDEX 1149 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Tune is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Raised 03/94 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services intends to amend rules cited as 10 NCAC 
18F .0313 and .0319. 

1 he proposed effective date of this action is 
January 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): 

A demand for a public hearing must be made in 
writing and mailed to Charlotte Tucker, 
Rulemaking Coordinator, Division of Mental 
Health, Developmental Disabilities and Substance 
Abuse Services, Albemarle Building, 325 N. 
Salisbury Street, Raleigh, NC 27603. Tfiis demand 
must be made within 15 days of this notice. 

MXeason for Proposed Action: Amend for further 
clarification in the provision ofDWl assessments. 

(comment Procedures: Anyone who wishes to 
submit written comments should address them to 
Charlotte Tucker, Division of Mental Health, 
Developmental Disabilities and Substance Abuse 
Services, 325 N. Salisbury Street, Albemarle 
Bldg., Raleigh, NC 27603. Comments will be 
accepted from October 14, 1994 through 
November 14, 1994. 

CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18F - PROGRAM 
SUPPORT STANDARDS 

SECTION .0300 - SUBSTANCE ABUSE 

ASSESSMENTS FOR 

INDIVIDUALS CHARGED WITH 

OR CONVICTED OF DRIVING 

WHILE IMPAIRED (DWI) 

.0313 DEFINITIONS 

For the purpose of the rules in this Section, the 

following terms shall have the meanings indicated: 

(1) "American Society of Addiction Medicine 

(ASAM) Placement Criteria" means the 



(2) 



(3) 



(4) 



(a) 



Patient Placement Criteria for the Treat- 
ment of Psychoactive Substance Abuse 
Disorders, copyright 1991 by the Nation- 
al Association of Addiction Treatment 
Providers and the American Society of 
Addiction Medicine. For these Rules, 
the ASAM Level I, Outpatient Treat- 
ment, has been divided into LA., Short- 
term and LB., Longer-term Outpatient 
Treatment. 

"Certified ADETS Instructor" means an 
individual who is certified by the Divi- 
sion in accordance with 10 NCAC 18M 
.0906 Instructor Certification, contained 
in Division publication, Standards for 
Area Programs and Their Contract Agen- 
cies, APSM 35-1, and available at the 
current printing cost. 
"Clinical Interview" means the face-to- 
face interview with a substance abuse 
professional intended to gather informa- 
tion on the client, including, but not 
limited to the following: demographics, 
medical history, past and present driving 
offense record, alcohol concentration of 
current offense, social and family history, 
substance abuse history, vocational back- 
ground and mental status. 
"Continuing Care" means an outpatient 
service designed to maximize the recov- 
ery experience begun in more intensive 
inpatient or outpatient treatment. As a 
continuation of the treatment experience 
this service is expected to begin immedi- 
ately upon the client's discharge from 
intensive treatment: 
When the continuing care follows an 
inpatient treatment experience , it shall : 
fh) — include, at a minimum, a total number 
of 20 contact hours of service during 
a 30 day period. — Each week of th e 
30 day period shall have scheduled 
hours of service; and 
(it) — continue for a minimum period of 90 
days. 

a total of 90 days, including the inten- 
sive inpatient treatment period, shall 
be provided; 
a minimum of 20 contact hours of 



0) 



mi 



m 



service during a 30-day period shall 
be provided. Each week of the 30- 
day period shall have scheduled hours 
of service; and 

for any of the remaining 90 days of 
continuing care, a specific schedule 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1063 



PROPOSED RULES 



for contact hours of service ]s not 
required. 
(b) The services shall be provided accord- 
ing to a written continuing care plan 
which shall: 
(i) address the needs of the client; and 
(ii) utilize individual, family and group 
counseling as required to meet the 
needs of the client. 

(5) "Division" means the same as defined in 
G.S. 122C-3; and is hereafter referred to 
as DMH/DD/SAS. 

(6) "DMH Form 508 (DWI Services Certifi- 
cate of Completion)" means the four-part 
form which is used in documenting the 
offenders completion of the DWI sub- 
stance abuse assessment and treatment or 
ADETS. 

(7) "Driving record" means a person's North 
Carolina driving history, as maintained 
by the North Carolina Driver's License 
Division's history file. 

(8) "DSM" means the current edition of the 
Diagnostic and Statistical Manual of 
Mental Disorders of the American Psy- 
chiatric Association. 

(9) "DWI" means impaired driving as de- 
scribed in G.S. 20-138.1. 

(10) "DWI categories of service" mean: 

(a) "Alcohol and Drug Education Traffic 
School (ADETS)" means an approved 
curriculum which shall: 

(i) include 10 to 13 contact hours in a 

classroom setting; 
(ii) be provided by area programs or their 
designated agencies with certified 
ADETS instructors; and 
(iii) be designed for persons: 

(A) who have only one DWI convic- 
tion (lifetime); 

(B) whose assessment did not identify 
a "Substance Abuse Handicap"; 
and 

(C) whose alcohol concentration was 
. 14 or less. 

(b) "Day treatment" means a structured, 
outpatient service. It may also be 
called intensive outpatient treatment, as 
defined in 10 NCAC 14N .0900 and 
applicable portions of 10 NCAC 14K 
.0300, which include ASAM Level II 
treatment criteria. 

(c) "Inpatient residential treatment servic- 
es" means an array of services which 
may include detoxification and rehabili- 



tation in a structured environment, as 
set forth in 10 NCAC +4© 14N .0300, 
and contained in Licensure Rules as 
defined in Item (13) of this Rule. Such 
services will correspond with ASAM 
Level III and Level IV treatment crite- 
ria. 

(d) "Longer-term outpatient treatment" 
means a structured program meeting the 
ASAM definition of Level I, Outpatient 
Treatment, and requiring a minimum of 
40 contact hours scheduled to maintain 
the client in active treatment for a 
minimum period of 60 days, providing 
counseling and learning experiences 
which include the "Minimal Subject 
Content," as defined in Item (14) of this 
Rule. The facility must operate in 
compliance with Licensure Rules, 10 
NCAC 14N .0700 and applicable por- 
tions of 10 NCAC 14K .0300. 

(e) "Short-term outpatient treatment" means 
a structured program meeting the broad 
definition of "ASAM Level I, Outpa- 
tient Treatment," and requiring a mini- 
mum of 20 contact hours over a period 
of at least 30 days, including counseling 
and didactic experiences which include 
the minimal subject content. Facilities 
which are approved to provide this shall 
operate in compliance with Licensure 
Rules contained in 10 NCAC 14N 
.0700 and applicable portions of 10 
NCAC 14K .0300. 

(11) "DWI Substance Abuse Assessment" 
means a service provided to persons 
charged with or convicted of DWI to 
determine the presence or absence of a 
substance abuse handicap. The assess- 
ment involves a clinical interview as well 
as the use of a standardized test. 

(12) "Facility" means the term as defined in 
G.S. 122C-3(14). 

(13) "Licensure rules" mean the rules con- 
tained in 10 NCAC 14K through 140 of 
the North Carolina Administrative Code 
and published in Division publication, 
Licensure Rules for MH/DD/SA Facili- 
ties, APSM 40-2. 

(14) "Minimal subject content" means the 
following list of subjects which shall be 
addressed in the educational portion of 
any treatment program serving DWI 
offenders: 

(a) Effects of Alcohol and Drugs on the 



1064 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



Body/Brain; 

(b) The Nature of Denial; 

(c) Disease Concept of Chemical Depen- 
dency; 

(d) Progression of Disease and Recovery 
(Jellinek Chart); 

(e) Chemical Dependency and the Family; 

(f) Introduction to Self- Help Groups/ 12 
Step Recovery Programs; 

(g) Relapse Prevention and Strategies for 
Recovery; and 

(h) Safe Roads Act Penalties. 

(15) "Special service plan" means a plan for 
persons who exhibit unusual circumstanc- 
es, such as severe hearing impairment; 
other physical disabilities; concurrent 
psychiatric illness; language and commu- 
nication problems; intractable problems 
of distance, transportation and schedul- 
ing; and chronic offenders with multiple 
unsuccessful treatment experiences. 

(16) "Standardized Test" means an instrument 
approved by the Department of Human 
Resources, with documented reliability 
and validity, which serves to assist the 
assessment agency or individual in deter- 
mining if the client has a substance abuse 
handicap. A current listing of the ap- 
proved standardized tests may be 
obtained by writing the DWI/Criminal 
Justice Branch, Division of 
MH/DD/SAS, 325 N. Salisbury Street, 
Raleigh, NC 27603. 

(17) "Substance Abuse Handicap" means a 
degree of dysfunction directly related to 
the recurring use/abuse of an impairing 
substance. 



the expiration date. 

(c) The facility providing the recommended 
treatment or education shall have the client sign 
the appropriate release of information, and 
progress reports shall be filed with the court or the 
Department of Correction at intervals not to 
exceed six months. 

(d) Upon completion of the recommended 
treatment or ADETS service, the agency shall: 

(1) forward the top page of the completed 
DMH Form 508 to the DWI/Criminal 
Justice Branch, DMH/DD/SAS; and 

(2) retain, for a period of at least five 
years, the appropriate page of the form, 
and distribute the remaining pages to 
the offender and the court as specified 
on the bottom of the form. 

(e) In the event that an assessment or treatment 
agency ceases to provide DWI-related services, the 
agency shall notify, in writing, the DWI Criminal 
Justice Branch to assure that all DMH Form 508s 
and other related documents specified in G.S. 20- 
179(m) are properly processed. 

(f) By February 15 of each year, all assessing 
agencies shall forward, in writing, to the 
DWI/Criminal Justice Branch of the Division the 
following information on the previous year's 
activities, which shall include but need not be 
limited to the number of: 

(1) pre-trial assessments conducted; 

(2) post trial assessments conducted; 

(3) individuals referred to ADETS; and 

(4) substance abuse handicaps identified 
and the recommended levels of 
treatment. 

Statutory Authority G. S. 20-1 79(m). 



Statutory Authority G.S. 20-138.1; 20-179; 
122C-3. 



TITLE 11 - DEPARTMENT OF 
INSURANCE 



.0319 REPORTING REQUIREMENTS 

(a) The assessment portion of the DMH Form 
508 shall be completed for each client who 
receives a DWI substance abuse assessment. An 
initial supply of this form may be obtained from 
the DWI/Criminal Justice Branch of the 
DMH/DD/SAS, 325 N. Salisbury Street, Raleigh, 
N.C. 27603. 

(b) The assessment portion of DMH Form 508 
shall be signed by a certified alcoholism, drug 
abuse, or substance abuse counselor. The date of 
expiration of that professional's certification shall 
be indicated on the client's Certificate of 
Completion and no assessment shall be signed after 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to amend rules cited as 11 NCAC 6A .0801 
- .0806, .0808 - .0809 and .0811. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 8, 1994 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, NC 27611. 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1065 



PROPOSED RULES 



lYeason for Proposed Action: Pursuant to recom- 
mendations made by continuing education advisory 
committee in compliance with G.S. 58-33-135, the 
amendments clarify problems identified during the 
first three years of the program. 

(comment Procedures: Written comments may be 
sent to George Brown at 430 N. Salisbury Street, 
Raleigh, N.C. 27611. Oral presentations may be 
made at the public hearing. Anyone having ques- 
tions should call George Brown at (919) 733-7487 
or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 6 - AGENT SERVICES 
DIVISION 

SUBCHAPTER 6A - AGENT SERVICES 
DIVISION 

SECTION .0800 - CONTINUING 
EDUCATION 

.0801 DEFINITIONS 

As used in this Section: 

(1) "Cluster of courses" means a number of 
courses, each of which is less than +30 
100 minutes in length, but altogether +30 
100 minutes or more in length, that are 
offered within one state or national pro- 
gram or convention. 

(2) "Course" means a continuing education 
course directly related to insurance prin- 
ciples and practices or a course designed 
and approved specifically for licensees; 
but does not mean a business course of a 
general nature or an insurance marketing 
or sales course. 

(3) "Disinterested third party" means a per- 
son not concerned, with respect to possi- 
ble gain or loss, in the result of a pend- 
ing course final examination. 

(4) "Distance learning" means an educational 
program in which the licensee and the 
instructor are in different physical loca- 
tions and interact with each other through 
various methods of telecommunication. 

(5) "Dual credit course" means a continuing 
education course that contains material 
that qualifies for both life and health 
insurance ICECs and property and liabili- 
ty_ insurance ICECs. 

{$) "Insurance continuing education credit 
or "ICEC"" means a value assigned to a 



<JU 



course by the Commissioner after review 
and approval of a course information. 
This term means the same as "credit 
hour" as used in G.S. 58-33-130. 

(7) $€r) "Instructor" means an individual who 
teaches, lectures, leads, or otherwise 
instructs a course. 

(8) f?) "Licensee" means a duly licensed §*e 
and casualty property and liability insur- 
ancet or lif e, accident, and health insur- 
ance^— eF— aeeideat— aad— beaHb-4as«faftee 
agent or broker who is required to com- 
ply with this Section. 

(9) {&) "Supervised examination" means a 
timed, closed book examination that is 
monitored by a disinterested third party 
and graded by a nationally recognized 
insurance education program. 

(10) {9) "Supervised individual study" means 
audio tapes, video tapes, computer pro- 
grams, programmed learning courses, 
and similar types of learning experiences 
that are completed in the presence of an 
approved instructor. 

Statutory Authority G.S. 58-2-40; 58-33-130. 

.0802 LICENSEE REQUIREMENTS 

(a) Life and health licensees shall obtain 12 
ICECs during each calendar year in approved life 
and health courses. 

(b) Property and liability licensees shall obtain 
12 ICECs during each calendar year in approved 
property and liability courses. 

(c) Any person holding more than one license to 
which this Section applies shall obtain 18 ICECs 
during each calendar year, including a minimum of 
six ICECs for each kind of license. 

(d) An instructor shall receive the maximum 
ICECs awarded to a student for the course. 

(e) Licensees shall not receive ICECs for the 
same course more often than one time in any three 
calendar year period except when there are major 
revisions within the course. The Commissioner 
shall determine whether the revisions are substan- 
tial enough to qualify for additional ICECs within 
a three calendar year period. 

(f) Licensees do not have to obtain ICECs for 
the calendar year in which they are initially li- 
censed. 

(g) Licensees shall receive ICECs for a course 
only for the calendar year in which the course is 
completed. Any course requiring an examination 
shall not be considered completed until the licensee 
passes the examination. 



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PROPOSED RULES 



(h) Licensees shall maintain records of all 
ICECs for three years following the obtaining of 
such ICECs, which records shall be available for 
inspection upon the Commissioner's request. 

(i) Nonresident licensees who meet continuing 
education requirements in their home states meet 
the continuing education requirements of this 
Section. Nonresident licensees whose home states 
have no continuing education requirements shall 
meet the requirements of this Section. 

(j) Licensees are exempt from the requirements 
of this Section if they: 

(1) are age 65 or older; and 

(2) have been continuously licensed in the 
line of insurance for at least 25 years; 
and either 

(3) hold a nationally recognized profession- 
al designation for the line of insurance. 
Acceptable designations include those 
listed in 11 NCAC 6A .0803 (a) and 
(b);or 

(4) meet the requirements of Subparagraphs 
(1) and (2) of this Paragraph and certify 
to the Department of Insurance annually 
they are inactive agency owners who 
neither solicit applications for insurance 
nor take part in the day to day opera- 
tion of the agency. 

(TO Any licensee holding: more than one license 
to which this Section applies and qualifies for 
exemption under Paragraph £j] of this Rule for one 
license type must obtain a minimum of six ICECs 
in each calendar year for the license type not 
exempted . 

£1} {k) Courses completed prior to the issue date 
of a new license do not meet the requirements of 
this Section for that new license. 

(m) ft) No credit will be given for courses taken 
before they have been approved by the Depart- 
ment. 

£n] (m) Persons who hold adjuster licenses shall 
obtain 12 ICECs during each calendar year in 
approved property and liability courses. As used 
in this Section, "licensee" includes a person who 
holds an adjuster license and who is required to 
comply with this Section. 

(o) {ft) Each agent holding an active surplus 
lines license with an effective date before January 
1 , 1994, must take a surplus lines course as part of 
the agent's 1994 property and liability continuing 
education requirement. Each agent issued a 
surplus lines license in 1994 must take a surplus 
lines course as part of the agent's 1995 property 
and liability continuing education requirement. 



Statutory Authority G. S. 58-2-40; 58-33-130. 

.0803 COURSES SPECIFICALLY 
APPROVED 

(a) Courses that are necessary to obtain the 
following nationally recognized designations are 
approved as they exist on the effective date of this 
Section for 18 ICECs upon successful completion 
of the national examination for each part: 

(1) Accredited Advisor in Insurance (AAI); 

(2) Associate in Claims (AIC); 

(3) Associate in Loss Control Management 
(ALCM); 

(4) Associate in Risk Management (ARM); 

(5) Associate in Underwriting (AU); 

(6) Certified Employees Benefit Specialist 
(CEBS); 

(7) Chartered Financial Consultant (ChFC); 

(8) Chartered Life Underwriter (CLU); 

(9) Chartered Property and Casualty Un- 
derwriter (CPCU); 

(10) Fellow Life Management Institute 
(FLMI); 

(11) General Insurance (INS); 

(12) Life Underwriter Training Council 
Fellow, 26 week (LUTCF). 

(b) Courses that are necessary to obtain the 
following nationally recognized designations are 
approved as they exist on the effective date of this 
Section for an amount of ICECs to be determined 
by the Commissioner's evaluation process: 

(1) Agency Management Training Course 
Graduate; 

(2) Certified Insurance Counselor (CIC); 

(3) Certified Insurance Service Representa- 
tive (CISR); 

(4) Certified Professional Service Repre- 
sentative (CPSR); 

(5) Fraternal Insurance Counselor (FIC); 

(6) Health Insurance Associate (HI A); 

(7) Life Underwriter Training Council 
Fellow, 13 weeks (LUTCF); 

(8) Registered Health Underwriter (RHU). 

(c) Courses that are taught by a college or 
university that is accredited by the Southern 
Association of Colleges and Schools are approved 
as they exist on the effective date of this Section 
for a number of ICECs to be determined by the 
Commissioner's evaluation process. 

(d) Each course provider or designee shall 
submit a fee of one dollar ($1.00) per approved 
ICEC per individual that successfully completes 
the course. 

(e) The statute and rule update Any course 
prepared by the Commissioner is approved as a 



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1067 



PROPOSED RULES 



mandator) ! 1 component of each resident licensee's 
continuing education requirement for a number of 
ICECs to be determined annually by the 
Commissioner's evaluation process. 

Statutory Authority G.S. 58-2-40; 58-33-130. 

.0804 CARRYOVER CREDIT 

(a) No more than 75 percent of the ICECs 
required shall be carried forward from the 
previous year. Licensees holding one license shall 
carry over no more than nine ICECs. Licensees 
holding more than one license shall carry over no 
more than six ICECs for any one license. Ne 
carry — over credit — wtH — be given — for Medicare 
supplement/long term — eafe — courses — et — fef — the 
mandatory statute and rule update course, 

(b) Only whole ICECs can be carried over. 

(c) No carryover shall apply to a dual license 
holder if the licensee qualifies for an exemption 
under Rule .0802(i) of this Section. 

Statutory Authority G. S. 58-2-40; 58-33-130. 

.0805 CALCULATION OF ICECs 

The following standards shall be used to evaluate 
courses submitted for continuing education 
approval : 

(1) Programs requiring meeting or classroom 
attendance: 

(a) Courses or clusters of courses of less 
than +20 100 minutes will not be 
evaluated for continuing education 
ICECs. 

(b) Courses will not be approved for less 
than one ICEC. 

(c) One ICEC shall be awarded for each 69 
50 minutes of instruction unless the 
Commissioner assigns fewer ICECs 
based upon the evaluation of the 
submitted course materials. Courses 
will only be approved for whole 
ICECs. 

(d) Course providers must properly monitor 
participants for attendance and 
attention. 

(2) Independent study programs: 

(a) Independent study programs qualify for 
continuing education only when there is 
a supervised examination. No 

examination administered or graded by 
insurance company personnel for its 
own employees will be considered to be 
administered by a disinterested third 
party. 



(b) Each course shall be assigned ICECs, 
which shall be awarded upon the 
successful passing of the supervised 
examination. 
(3) Distance Learning Programs: 

(a) Distance learning qualifies only when 
an approved instructor is available to 
respond to questions and to maintain 
attendance records. 

(b) Any organization sponsoring a 
teleconference shall have a person 
approved to be an on-site instructor. 

Statutory Authority G.S. 58-2-40; 58-33-130. 

.0806 ATTENDANCE 

(a) If six ICECs or less are assigned to a course, 
the licensee must attend 100 percent of the course 
to receive any ICECs. 

(b) If more than six ICECs are assigned to a 
course, and the licensee passes the exam and 
attends at least 80 percent of the course, the 
licensee shall receive 100 percent of the ICECs 
assigned to the course. 

(c) If more than six ICECs are assigned to a 
course, and the licensee does not pass the exam 
but attends at least 80 percent of the course, the 
licensee shall receive 80 percent of the ICECs 
assigned to the course. 

(d) An instructor may conduct a class with up to 
30 students with no additional assistance. For 
classes with attendance exceeding 30 students, one 
monitor is required for each additional 50 students 
or any portion thereof. 

(e) Providers conducting classes outside of the 
State where at least 25% of the students are 
requesting North Carolina ICECs shall make 
arrangements and pay all expenses for one or more 
De partment continuing education monitors to 
attend. 

Statutory Authority G.S. 58-2-40; 58-33-130. 

.0808 INSTRUCTOR QUALIFICATION 

(a) Instructor qualification requirements shall be 
the same as those for instructors as provided in 1 1 
NCAC 6A .0705(c), except that the Commissioner 
may approve instructors possessing specific areas 
of expertise to instruct courses comprising those 
areas of expertise. 

(b) Insurance company trainers as instructors 
must be full time salaried employees of the 
insurance company sponsoring the course and must 
have as part of their full time responsibilities the 
duty to provide insurance company training. 



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PROPOSED RULES 



(c) College and university instructors may be 
full time or adjunct faculty of the accredited 
college or university, must be teaching a 
curriculum course in his or her field of expertise, 
and must meet the requirements of the association 
that accredits the college or university. 

(d) The Commissioner may require applicants 
and current instructors to submit to a personal 
interview, provide a video or audio type, a written 
history of courses taught or any other 
documentation that will verify the applicant's 
qualifications to instruct approved insurance 
courses. 

Statutory Authority G.S. 58-33-130. 

.0809 APPROVAL OF COURSES 

(a) Providers of all courses specifically approved 
under 11 NCAC 6A .0803 must file copies of 
program catalogs, course outlines, copies of 
advertising literature, a filing fee of one hundred 
dollars ($100.00) per course up to a two thousand 
five hundred dollar ($2,500) per calendar year 
maximum, and any other documents or related 
materials that the Commissioner requests, prior to 
January 1, 1991, and within 30 days of any 
changes to such programs in the future. 

(b) All providers of courses not specifically 
approved under 1 1 NCAC 6A .0803 must do the 
following: 

(1) Any individual, school, insurance 
company, insurance industry 
association, or other organization 
intending to provide classes, seminars, 
or other forms of instruction as 
approved courses shall apply on forms 
provided by the Commissioner; pay a 
filing fee of one hundred dollars 
($100.00) per course up to a two 
thousand five hundred dollar ($2,500) 
per calendar year maximum and 
provide the requested number of copies 
of detailed outlines of the subject matter 
to be covered, copies of handouts to be 
given, the qualifications of each 
instructor, and other information 
requested by the Commissioner to 
support the request for approval. 

(2) Providers of supervised individual study 
programs must file the requested 
number of copies of the study 
programs. Extra copies will be 
returned to a provider after course 
approval if a return fee is paid in 
advance. 



(3) Such applications and accompanying 
information must be received by the 
Commissioner at least 30 days prior to 
the intended beginning date of the 
course. 

(4) The Commissioner shall approve or 
deny the application; and shall indicate 
the number of ICECs that have been 
assigned to the course if approved. If 
a course is not approved or disapproved 
within 60 days after receipt of all 
required information, the course is 
deemed to be approved at the end of 
the 60-day period. 

(5) If a course approval application is 
denied, a written explanation of the 
reason for such action shall be 
furnished with the denial. 

(c) Course approval applications must include all 
of the following forms and attached information in 
exactly the following order: 

(1) A cover letter with payment of a filing 
fee of one hundred dollars ($100.00) 
per course attached with separate 
paragraphs for the following: 

(A) a request that the course be evaluated; 

(B) for whom the course is designed; 

(C) the course objectives; 

(D) the names and duties of all persons 
who will be affiliated in an official 
capacity with the course; 

(E) the course provider's tuition and fee 
refund policy; and 

(F) an outline that shall include a 
statement of the method used to 
determine whether there will be 
meaningful attainments of education 
by licensees to be certified upon their 
satisfactory completion of the course. 
Such method may be a written 
examination, a written report, 
certification of attendance only, or 
other methods approved by the 
Commissioner. The outline shall 
describe the method of presentation; 

(2) The course content outline with 
instruction hours assigned to the major 
topics; 

(3) Instructor qualification form and 
instructor resume if not previously 
approved; 

(4) Schedule of dates, beginning and 
ending times and places the course will 
be offered, along with the names of 
instructors for each course session. 



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1069 



PROPOSED RULES 



Schedules shall be submitted at least 30 
days in advance of any subsequent 
course offerings but it will not be 
necessary that courses be resubmitted 
unless there are substantial changes in 
content; and 

(5) A copy of the course completion 
certificater; and 

(6) A package of the course materials that 
each student shall be given before the 
start of class. At a minimum this 
package shall include the course content 
outline with instruction times assigned 
to all major topics, the instructor's 
resume, and a course and instructor 
assessment form. 

(d) The Commissioner may waive any part of 
this Section for programs offered by the University 
of North Carolina system schools or the North 
Carolina Department of Community Colleges. 

(e) A provider may request that its materials be 
kept confidential if they are of a proprietary 
nature. The Commissioner will review and 
promptly return such extra copies of materials if a 
return fee is paid in advance. 

(f) A provider must indicate the requested 
primary line of authority on the course approval 
form for dual credit courses. 

(g) ff) Courses awarded more than six ICECs 
must have an Insurance Department approved 
exam for the student to get full credit; otherwise, 
the limitations of 11 NCAC 6A .0806(c) will 
apply. 

(h) {g) Cancelled course schedules must be 
submitted five days before the scheduled course 
offering. All students scheduled to attend the 
cancelled course must be informed of the 
cancellation. 

(i) Dual credit courses that are submitted shall 
be awarded no more than six ICECs for one of the 
lines of insurance plus no more than three ICECs 



for the other line of insurance. 

Statutory Authority G. S. 58-2-40; 58-33-130. 

.0811 SANCTIONS FOR NONCOMPLIANCE 

(a) This Rule establishes sanctions for licensees 
who fail to complete their annual continuing 
education requirements and for licensees, course 
providers, course provider personnel, course 
presenters, course presenter personnel, and course 
instructors who falsify any records or documents 
in connection with the continuing education 
program or who do not comply with G.S. 
58-33-125 or this Section. 



(b) The failure of a licensee to meet the annual 
continuing education requirement shall result in the 
cancellation of his or her license for the 
subsequent calendar year. The license will be 
reinstated upon proof that the licensee has 
completed the continuing education requirements 
and subsequently passed the agent's licensing 
examination by July 1 of each year of cancellation. 
If requirements for reinstatement are not completed 
by July 1 , the licensee will be required to complete 
the full pre-licensing education requirement and 
pass the agent's licensing examination before the 
license will be reinstated. 

(c) The Commissioner may suspend, revoke, or 
refuse to renew a license for any of the following 
causes: 

(1) Failure to timely respond to insurance 
department inquiries, including 
continuing education audit requests. 

(2) Requesting an extension or waiver 
under false pretenses. 

(3) Refusing to cooperate with insurance 
department employees in an 
investigation or inquiry. 

(d) The Commissioner may suspend, revoke, or 
refuse to renew a course provider's, presenter's or 
instructor's authority to offer courses for any of 
the following causes: 

(1) Advertising that a course is approved 
before the Commissioner has granted 
such approval in writing. 

(2) Submitting a course outline with 
material inaccuracies, either in length, 
presentation time, or topic content. 

(3) Presenting or using unapproved 
material in providing an approved 
course. 

(4) Failing to conduct a course for the full 
time specified in the approval request 
submitted to the Commissioner. 

(5) Preparing and distributing certificates of 
attendance or completion before the 
course has been approved. 

(6) Issuing certificates of attendance or 
completion prior to the completion of 
the course. 

(7) Failing to issue certificates of 
attendance or completion to any 
licensee who satisfactorily completes a 
course. 

(8) Failing to promptly notify the 
Commissioner of suspected or known 
improper activities including attendance 
and attention irregularities in writing. 

(9) Any violation of the North Carolina 



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PROPOSED RULES 



General Statutes or Administrative 
Code. 

(10) Failing to diligently monitor attendance 
and attention of attendees. 

(11) Conducting classes in facilities not in 
compliance with the federal Americans 
with Disabilities Act or any similar 
State law or any applicable State or 
federal laws pertaining to safety. 

(12) Presentation of course material in a 
manner that is factually inaccurate, 
communicatively faulty. or 
grammatically inaccurate, as based 
upon multiple evaluations by 
Department continuing education 
monitors. education coordinator. 
Deputy Commissioner of the Agent 
Services Division, or the Senior Deputy 
Commissioner of the Public Services 
Group. 

(e) Course providers and presenters are 
responsible for the activities of persons 
conducting, supervising, instructing, proctoring, 
monitoring, moderating, facilitating, or in any way 
responsible for the conduct of any of the activities 
associated with the course. 

(f) In addition, the Commissioner may require 
any one of the following upon a finding of a 
violation of this Section: 

(1) Refunding all course tuition and fees to 
licensees. 

(2) Providing licensees with a suitable 
course to replace the course that was 
found in violation. 

(3) Withdrawal of approval of courses 
offered by such provider, presenter, or 
instructor for a period determined by 
the Commissioner. 

Statutory Authority G.S. 58-2-40; 58-33-130. 

****************** 

l\ otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rule cited as 1 1 NCAC 12 .0561. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 8, 1994 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 



Raleigh, NC 27611. 

MXeason for Proposed Action: To require fair 
computation of health insurance deductibles and 
co-payments when health care services are provid- 
ed at discounted fees negotiated by insurers and 
health care providers. 

Comment Procedures: Written comments may be 
sent to Randy Madry at 112 Cox Avenue, Raleigh, 
N. C. 27605. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call Randy Madry at (919) 715-0194 or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 12 - LIFE AND 
HEALTH DIVISION 

SECTION .0500 - ACCIDENT 
HEALTH: GENERAL NATURE 

.0561 DEDUCTIBLES AND COPAYMENTS 
BASED ON REAL COST 

(a) As used in this Rule: 

(1) "Health benefit plan" means any acci- 
dent and health insurance policy or 
certificate; a nonprofit hospital or medi- 
cal service corporation contract: a 
health maintenance organization sub- 
scriber contract; a plan provided by a 
multiple employer welfare arrangement; 
or a plan provided by another benefit 
arrangement. 

(2) "Health care provider" includes any 
person who, under Chapter 90 of the 
General Statutes is licensed, registered, 
or certified to engage jn the practice of 
or performs duties associated with any 
of the following: medicine, surgery, 
dentistry, pharmacy, optometry, mid- 
wifery, osteopathy, podiatry, chiroprac- 
tic, radiology, nursing, physiotherapy, 
pathology, anesthesiology, anesthesia, 
laboratory analysis, rendering assistance 
to a physician, dental hygiene, psychia- 
try, psychology; or a hospital as de- 
fined by G.S. 131E-76Q); or a nursing 
home as defined by G.S. 131E-10U6). 

(3) "Health insurer" means any health 
insurance company subject to Articles I 
through 63 of this Chapter, including a 
multiple employer welfare arrangement; 
any preferred provider plan; and any 



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1071 



PROPOSED RULES 



corporation subject to Articles 65 and 
67 of this Chapter; that provides a 
health benefit plan. 

(b) If health insurers enter into contracts with 
health care providers for the provision of health 
care services at discounted rates of payment, and 
applicable deductibles or copavments paid by 
insureds are to be based upon a percentage of the 
fees for services rendered, the amounts of deduct- 
ibles and copavments shall be computed only on 
the negotiated discounted rates for the services 
rendered. 

(c) The following are deemed to be unfair and 
deceptive acts and practices in the business of 
insurance: 

(1) Attempting to settle a claim or attempt- 
ing to charge or to collect or charging 
or collecting copavments in amounts 
greater than those calculated in accor- 
dance with this Rule. 

(2) Attempting to pay or settle or paying or 
settling a claim based upon the calcula- 
tion of a deductible that is not calculat- 
ed in accordance with this Rule. 

(3) Attempting to calculate or calculating 
an annual, calendar, or lifetime maxi- 
mum amount payable on any amounts 
other than as set forth in this Rule. 

(4) Attempting to settle a claim involved in 
coordination of benefits in any manner 
not in accordance with this Rule. 

(5) Attempting to collect a claim against a 
stop-loss or excess health insurer in any 
manner inconsistent with this Rule. 

(d) Negotiating discounts with health care 
providers based upon the total volume of services 
and that is settled on a retrospective basis in which 
the discounts are not attributed to individual 
claimants. |s not deemed to be an unfair and 
deceptive act or practice in the business of insur- 
ance. 

Statutory Authority G.S. 58-2-40; 58-50-55; 58-63- 
65; 58-65-1; 58-65-40; 58-65-140; 58-67-150. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 16 .0601 
- .0607. 

1 he proposed effective date of this action is 



January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 8, 1994 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, NC 27611. 

Keason for Proposed Action: Establish standards 
and guidelines for health maintenance organization 
premium and rate filings with the Department of 
Insurance. 

Ksomment Procedures: Written comments may be 
sent to Walter James at 430 N. Salisbury Street, 
Raleigh, N.C. 27611. Oral presentations may be 
made at the public hearing. Anyone having ques- 
tions should call Walter James at (919) 733-3284 
or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 16 - ACTUARIAL 
SERVICES DIVISION 

SECTION .0600 - HEALTH 

MAINTENANCE ORGANIZATION 

FILINGS AND STANDARDS 

.0601 DEFINITIONS 

(a) The definitions contained in G.S. 58-67-5 are 
incorporated in this Section by reference. 

(b) As used in this Section: 

(1) "Adjusted community rating" means a 
rating method that allows an HMO to 
prospectively establish premium rates 
based upon the expected revenue re- 
quirements for individual groups and to 
take into account a group's historical 
utilization, intensity, or cost experience. 

(2) "Capitated" means covered health care 
services are provided by an HMO, 
medical group, or institution based on 
a prepaid fixed amount per enrollee 
regardless of the actual value of those 
services. 

(3) "Community rating" means a general 
method of establishing premiums for 
financing health care in which an 
individual's rate is based on the actual 
or anticipated average cost of health 
services used by all HMO members in 
a specific service area. 

(4) "Community rating by class" means a 
modification of community rating 
whereby individual groups can have 



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PROPOSED RULES 



15) 



16] 



m 



181 



m 



(10) 



1LQ 



► 



(12) 
(13) 

(14) 

(15) 



different rates depending on the 
composition by age, gender, number of 
family members covered, geographic 
area, or industry. 

"Contingency reserve" means the 
unassigned funds held over and above 
any known or estimated liabilities of an 
HMO for the protection of its enrollecs 
against the insolvency of the HMO, 
"Contract type" means a classification 
of members into categories usually 
based on enrolled dependent status. 



such as subscriber only, subscriber with 

one dependent, and subscriber with two 

or more dependents. 

"Credibility rating" means a rating 

method that establishes premium rates 

based upon the assignment of a level of 

credibility to an HMO group's 

historical utilization, intensity, or cost 

experience. 

"Fee-for-service" means payment for 

health care services is made on a 

retrospective basis based on the actual 

value of those services. 

"Full-service HMO" means an HMO 

that provides a comprehensive range of 

medical services, including hospital and 

physician services. 

"HMO expansion request" means all 

materials submitted for the purpose of 

obtaining authority to operate an HMO 

in a new or expanded geographic area 

in this State. 

"HMO model 



type" 



means 



classification that describes the manner 
in which physicians are affiliated with 
the HMO and the contractual and 
payment arrangements with hospitals; 
and includes types such as group, 
network, staff, independent practice 
association, and point-of-service. 
"HMO rate filing" means an initial 
HMO rate filing, and HMO expansion 
request or an HMO rate revision filing. 
"HMO rate revision filing" means all 
materials submitted for the purpose of 
making a revision to an existing 
schedule of premiums. 
"Incurred loss ratio" means the ratio of 
total medical expenses including the 
change in claim reserves to total earned 
premium revenues. 

"Initial HMO rate filing" means all 
materials submitted for the purpose of 



obtaining a certificate of authority to 
operate an HMO in this State. 

(16) "Qualified actuary" means an individual 
who is an Associate or Fellow of the 
Society of Actuaries or a Member of 
the American Academy of Actuaries 
and has at least five years of substantive 
experience in the managed care field. 

(17) "Single-service HMO" means an HMO 
that provides one specific type of 
medical service, such as vision or 
dental care. 

Statutory Authority G.S. 58-67-50(b); 58-67-150. 

.0602 HMO GENERAL FILING 
REQUIREMENTS 

(a) All schedules of premiums for enrollee 
coverage for health care services and amendments 
to schedules of premiums that are filed with the 
Department shall indicate whether the filing is an 
original or amended filing. All data requirements 
prescribed by this Section must be submitted 
within 30 days after the date that the filing is 
stamped received, or the filing will be deemed to 
be disapproved. 

(b) All filings shall be accompanied by: 

(1) A certification by a qualified actuary 
that the premiums applicable to an 
enrollee are not individually determined 
based on the status of his health and 
that such premiums are established in 
accordance with actuarial principles for 
various categories of enrollees and are 
not excessive, inadequate, or unfairly 
discriminatory. 

(2) Actuarial data supporting the schedule 
of premiums as prescribed by 11 
NCAC 16 .0603. 11 NCAC 16 .0604. 
U NCAC 16 .0605 and U NCAC 16 
.0606. 

(c) All data and schedules that are required to be 
filed by this Section shall be filed in duplicate. 

Statutory Authority G.S. 58-67-50(b); 58-67-150. 

.0603 HMO RATE FILING DATA 
REQUIREMENTS 

All HMO rate filings shall include the following 
data: 

(1) Identification and a brief description of 
the HMO model type. 

(2) Identification of the enrollee issue basis, 
whether individual or group. 

(3) Identification and a description of the 



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PROPOSED RULES 



type of rating methodology, such as 
community rating, community rating by 
class, adjusted community rating, 
credibility rating, or other. 

(4) Identification and listing of al] rate 
classification factors, such as age, 
gender, geographic area, industry, group 
size, or effective date. 

(5) A description and numerical 
demonstration of the development of the 
capitated rate, including a listing of 
sources used. 

(6) A description and numerical 
demonstration of the development of any 
portion of the premium rate developed 
for fee-for-service claims, including a 
listing of sources used. 

(7) A brief description of the claim reserving 
methodology and the incorporation of 
claim reserves into the premium rate. 

(8) A description of the procedure and 
identification of the assumptions used to 
convert the total per member per month 
cost to the proposed premium rates; 
including assumptions for the distribution 
of contracts by contract type, the ratios 
of two-person and family rates to the 
single rate, and the average number of 
members in each contract type. 

(9) The projected monthly incurred loss 
ratios for the period of time equal to the 
number of months for which the rates 
will be in effect, plus the number of 
months the rates will be guaranteed. 

(10) The percentage of the p_er member per 
month premium for each loading factor, 
such as administration or overhead 
expenses. marketing, broker 
commissions, surplus or capital, 
contingency reserve, reinsurance, and 
profit margin. 

Statutory Authority G S. 58-67-50(b); 58-67-150. 

.0604 INITIAL HMO RATE FILING 
DATA REQUIREMENTS 

All initial HMO rate filings shall include, in 
addition to the data required by 1 1 NCAC 16 
.0603, the following data: 

(1) A comparison of the rates to other HMO 
rates with the same effective date in 
North Carolina for similar benefit plans. 

(2) A completed diskette, provided by the 
Actuarial Services Division of the 
Department, containing a three-year 



financial projection that details total 
membership, revenues and expenses, and 
that includes a statement of cash flow, a 
balance sheet, and a statement of working 
capital and net worth. 

Statutory Authority G.S. 58-67-10(d)(l); 58-67- 
50(b); 58-67-150. 

.0605 HMO EXPANSION REQUEST 
DATA REQUIREMENTS 

All HMO expansion requests shall include, in 
addition to the data required by 11 NCAC 16 
.0603, the following data: 

(I) A comparison of the actual financial 
results, including total membership, 
revenues, and expenses, to the projected 
financial results for at least the most 
recent 12-month period preceding the 
effective date of the proposed expansion. 

£2} A completed diskette, provided by the 
Actuarial Services Division of the 
Department, containing a three-year 
financial projection that details total 
membership, revenues, and expenses, and 
that includes a statement of cash flow, a 
balance sheet, and a statement of working 
capital and net worth for both the 
existing service area and the proposed 
area of expansion. 

Statutory Authority G.S. 58-67-10(d)(l); 58-67- 
50(b); 58-67-150. 

.0606 HMO RATE REVISION FILING 
DATA REQUIREMENTS 

All HMO rate revision filings shall include, in 
addition to the data required by 11 NCAC 16 
.0603. the following data: 

(1) The scope and reason for any rate 
revision including a brief description of 
the methodology employed to determine 
the revised rates, such as budgetary or 
cost method, fee-for-service method, or 
other. 

(2) The number of months the rates will be 
in effect and the number of months the 
rates will be guaranteed. 

(3) The dates and percentage amounts of all 
prior and requested rate revisions in 
North Carolina; and quarterly rate 
increases shall be shown in comparison to 
both the immediately preceding quarter 
and the corresponding quarter of the 
previous 12-month period. 



1074 



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PROPOSED RULES 



£4} The North Carolina average annual per 
member per month premium revenue 
before and after the rate revision. 

(5) Identification of any actual versus 
expected utilization rates or medical costs 
that may be used to justify a premium 
rate revision. 

(6) Identification, justification, and derivation 
of any trend factor used to project 
medical expenses. 

(7) A comparison of the actual financial 
results, including total membership, 
revenues, and expenses, to the projected 
financial results for at least the most 
recent 12-month period preceding the 
effective date of the revised rates. 

(8) A completed diskette, provided by the 
Actuarial Services Division of the 
Department, that contains a financial 
projection for the period of time equal to 
the number of months the rates will be in 
effect plus the number of months the 
rates will be guaranteed, that details total 
membership, revenues, and e xpenses, and 
that includes a statement of cash flow, a 
balance sheet, and a statement of working 
capital and net worth. 

Statutory Authority G.S. 58-67-50(b); 58-67-150. 

.0607 HMO INCURRED LOSS RATIO 
STANDARDS 

(a) The following apply to all HMO rate 
revision filings: 



ID 



Premium rates are 



deemed to be 
monthly 



inadequate if any of the 
incurred loss ratios projected for North 
Carolina over the period required by 1 1 
NCAC 16 .0606(8) are greater than: 

(A) 85.0% for a full-service HMO issued 
on a group basis. 

(B) 75.0% for a single-service HMO 
issued on a group basis. 

(C) 75.0% for a full-service HMO issued 
on an individual basis. 

(D) 65.0% for a single-service HMO 
issued on an individual basis. 



121 



Premium rates are deemed to be exces- 



(A) 



im 



sive if any of the monthly incurred loss 
ratios projected for North Carolina over 
the period required by 11 NCAC 16 
.0606(8) are less than: 

80.0% for a full-service HMO issued 

on a group basis. 

70.0% for a single-service HMO 



issued on a group basis. 

(C) 70.0% for a full-service HMO issued 
on an individual basis. 

(D) 60.0% for a single-service HMO 
issued on an individual basis. 

(b) The following a pply to all initial HMO rate 
filings and HMO expansion requests : 

(1) Premium rates are deemed to be inade- 
quate if any of the monthly incurred 
loss ratios projected for North Carolina 
over the last 12 months of the three 
year financial projection are greater 
than: 

(A) 85.0% for a full-service HMO issued 
on a group basis. 

(B) 75.0% for a single-service HMO 
issued on a group basis. 

(C) 75.0% for a full-service HMO issued 
on an individual basis. 

(D) 65.0% for a single-service HMO 
issued on an individual basis. 

(2) Premium rates are deemed to be exces- 
sive if any of the monthly incurred loss 
ratios projected for North Carolina over 
the last 12 months of the three year 
financial projection are less than: 

(A) 80.0% for a full-service HMO issued 
on a group basis. 

(B) 70.0% for a single-service HMO 
issued on a group basis. 

(C) 70.0% for a full-service HMO issued 
on an individual basis. 

(D) 60.0% for a single-servi ce HMO 
issued on an individual basis. 

Statutory Authority G.S. 58-67-50(b); 58-67-150. 

TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Sheriffs ' Educa- 
tion and Training Standards Commission intends to 
amend rule cited as 12 NCAC 10B .2105. 

L he proposed effective date of this action is 
January 1. 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): Any person interested in this proposed rule 
amendment may demand a Public Rule-Making 
Hearing by submitting a written request for such 
hearing to the Commission within 15 days of 



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1075 



PROPOSED RULES 



publication of this notice. This request should be 
directed to Joan Neuner, Director, at the address 
listed below. 

MXeason for Proposed Action: The Commission 
has previously filed this rule, making modifications 
to .2105(a). The staff noted after the rule-making 
hearing that an oversight was made in that we 
failed to modify .2105(b) to be consistent with the 
changes in .2105(a). We are therefore filing to 
make this minor technical change to remove the 
"30 day" requirement from .2105(b). 

Comment Procedures: Any person interested in 
this proposed rule amendment may present written 
comments relevant to the proposed action to the 
Commission by November 14, 1994. Written 
comments should be directed to Joan Neuner, 
Director, at the address listed below. This 
proposed rule amendment is available for public 
inspection and copies may be obtained at the 
following address: Sheriffs' Standards Division, 
N.C Dept. of Justice, P.O. Drawer 629, Raleigh, 
NC 27602. 

CHAPTER 10 - N.C SHERIFFS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 



officer has complied with the require- 
ments of 12 NCAC 10B .2103 and 
.2104; and 
(2) the justice officer and the sheriff re- 
ceive from the Commission documenta- 
tion that the Commission has terminated 
the suspension and reinstated the certifi- 
cation to the justice officer. 
(d) Any justice officer previously unauthorized 
to carry a weapon but whose status changed to 
"authorized to carry a weapon," must comply with 
the provisions set out in 12 NCAC 10B .2103 and 
.2104; and may not carry a firearm until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 
officer has complied with the require- 
ments of 12 NCAC 10B .2103 and 
.2104; and 

(2) the justice officer and the sheriff re- 
ceive from the Commission documenta- 
tion that the Commission has amended 
the officer's status to "authorized to 
carry a weapon" and all certification 
files reflect the same. 

Statutory Authority G.S. 17E-4; 17E-7. 

TITLE 13 - DEPARTMENT 
OF LABOR 



SUBCHAPTER 10B - NC SHERD7FS' 

EDUCATION AND TRAINING 

STANDARDS COMMISSION 

SECTION .2100 - JUSTICE OFFICERS' 

FIREARMS IN-SERVICE TRAINING 

REQUALIFICATION PROGRAM 

.2105 FAILURE TO QUALIFY 

(a) Justice officers who fail to qualify pursuant 
to Rule .2104 shall immediately surrender their 
weapons to the sheriff, upon his request, and shall 
have 30 days in which to obtain the qualification 
score required in 12 NCAC 10B .2104. 

(b) Failure to qualify within the 30 day time 
period allowed in 12 NCAC 10B .2105(a) will 
result in the summary suspension of the justice 
officer's certification by the Commission. 

(c) No justice officer summarily suspended 
under Paragraph (b) of this Rule and in compliance 
with 12 NCAC 10B .0206(a)(3) may work as a 
certified justice officer until: 

(1) the sheriff forwards to the Commission 
documentary evidence verifying that the 



iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to amend rules cited as 13 NCAC 13 
.0101, .0201 - .021 3, .0301 - .0304, .0306, .0401 
- .0403, .0405 - .0406, .0409 - .0410, .0413 - 
.0416, .0421, .0501, .0504, .0801, .0803 - .0805, 
. 0807 - . 0809, . 0812 - . 0813, . 0815; adopt . 0103, 
.0305, .0404, .0407 -.0408, .0411, .0420; repeal 
.0502 - .0503, .0601 - .0609, .0810, .0814 and 
.0816. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 9:30 
a.m. on November 3, 1994 at the NC Department 
of Agriculture Bldg. , Room 359, 1 W. Edenton 
Street, Raleigh, NC 27601. 

Reason for Proposed Action: To update the 
Uniform Boiler and Pressure Vessel Regulations. 
The N. C Department of Labor is submitting 



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PROPOSED RULES 



proposed rules regarding the Uniform Boiler and 
Pressure Vessel Act. As part of the process of 
revising these rules, the Department proposes a 
rearrangement of the numbers in certain sections. 
This proposal is made for purposes of clarifying 
the rules. The proposed changes are mainly 
reflected in Section . 0400 with one such change in 
Section .0300. 

(comment Procedures: Please submit your com- 
ments to Mr. Scott Templeton, APA Coordinator, 
NC Dept of Labor, 4 W. Edenton Street, Raleigh, 
NC 27601, FAX (919) 733-6197; Telephone (919) 
733-0368 by November 14, 1994. You may pres- 
ent written or oral comments at the hearing; 
however, time limits may be imposed by the Chair. 

CHAPTER 13 - BOILER AND 
PRESSURE VESSEL 

SECTION .0100 - DEFINITIONS 

.0101 DEFINITIONS 

The following definitions are applicable through- 
out this Chapter: 
(1) (3) "Appurtenance" means any control, 
fitting, appliance or device attached to or 
working in conjunction with the boiler or 

pressure vessel proper. NOTE: The 

t e rm "appurtenanc e " is us e d in S e ction 

III of th e ASME Cod e (Nucl e ar) in a 

manner — different — from — the — definition 

herein. — S e ction III i s incorporated into 

thes e — Rul e s — by — r e fer e nc e — (see — R-u4e 

.0401). — Wh e n construing the provisions 

of Section HI, apply th e sp e cial us e of 

the term ther e in. 

121 f»"ASME Code" means all sections of 

the Boiler and Pressure Vessel Code of 

the American Society of Mechanical 

Engineers that have been adopted by the 

Boiler and Pressure Vessel Division. 

(3) "Audit" means activities performed by 

the Director, his designee, or a deputy 

inspector other than those identified as 

inspections, including: 

(a) reviews and surveys for ASME and 

National Board stamp issuance and 

renewal: 

fb) audits performed on an inspector at the 

location of a manufacturer or repair 

organization as may be required by the 

ASME Code, National Board Inspection 

Code, or National Board Rules and 



Regulations; and 
(c) audits pursuant to evaluation for the 
issuance of North Carolina Specials. 

(4) "Automatically fired boiler" means a 
boiler which does not require a constant 
attendant for the purpose of introducing 
fuel into the combustion chamber. 

(5) {^"Authorized inspection agency" means 
ene — ©f an organization employing 
inspectors holding valid North Carolina 
Commissions and National Board 
Commissions, including the following: 

(a) a department or division established by 
a s tate, commonwealth, or municipality 
of the United States, or a province of 
Canada, which has adopted one or more 
sections of th e ASME Code (of which 
one — shall — be — Section — V) — and — whose 
inspectors hold valid commissions with 
the — National — Board — ef- — Boiler — a«d 

Pressure Vessel Inspectors; the 

Department of Labor; 

(b) an inspection agency of an insurance 
company licensed to write boiler and 
pressure vessel insurance and who s e 
in s pector s hold valid North Carolina 
commissions ; or 

(c) an owner-user inspection agency that 
meets the requirements of G.S. 
95-69.15. 

(6) "Board" means the North Carolina Board 
of Boiler and Pressure Vessel Rules. 

£71 <4)"Boiler," as defined in G.S. 
95-69. 9(b), includes the following types 
of boilers: 

(a) "Power boiler" means a boiler in which 
steam or other vapor is generated at a 
pressure of more than 15 psig and 
includes a high — pres s ure, 
high-temperature water boiler and an 
unfircd steam boiler; 

fb) "High pressure, high temperature water 

boiler" means a water boiler operating 
at pressures exceeding 160 psig or 
temperatures exceeding 250 °F or both 
at or near the boiler outlet; 

fe) "Unfircd — s team — boiler" — mean s — an 

unfired pressure vessel in which s team 
pressure is generated by the application 
of heat from an indirect source; 

(b) fd)"Heating boiler" means^ 

£il a steam boiler operated at pressures 
not exceeding 15 psig^j or 

(ii) a hot water heating boiler operated at 
pressures not exceeding 160 psig and 



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1077 



PROPOSED RULES 



temperatures not exceeding 250°F, at 
or near the boiler outlet; and outlet, 
and supplying heated water, normally 
used for building heat applications 
(hydremic boiler), in which water is 
returned to the boiler from the piping 
system; 

fe) a " Hot hot water supply or s torage 
vessel boiler - mean s — a — boiler — ef 

indir e ctly fired pressure vessel 

completely — filled — with — water that 
furnishes hot water to be used 
externally to itself (domestic water 
boiler) at pressures not exceeding 160 
psig or temperatures not exceeding 
250 °F at or near the hot water outlet. 
outlet; and 
(iv) a potable hot water heater operating at 
pressures not exceeding 160 psig and 
temperatures not exceeding 210°F. at 
or near the boiler outlet, and 
supplying water intended for potable 
use only, 

(c) "Steam boiler" means a power boiler or 
heating boiler which generates steam or 
other vapor within the internal 
mechanism or at the boiler outlet during 
operation; 

(d) "Water boiler" means a power boiler or 
heating boiler which does not produce 
steam or other vapor during operation. 
The term water boiler also applies to 
boilers heating liquids other than water 
which do not create a vapor during 
operation. 

'Boiler blowoff" 



m 



means that system 
associated with the rapid draining of 
boiler water to remove concentrated 
solids which have accumulated as a 
natural result of steam generation. This 
term also applies to the blowoff for other 
boiler appurtenances, such as the low- 
water fuel cutoff. 
(9) (§}"Boiler or pressure vessel proper" 
means the internal mechanism, shell, and 
heads of a boiler or pressure vessel 
terminating at: 

(a) the first circumferential joint for welded 
end connections; 

(b) the face of the first flange in bolted 
flange connections; or 

(c) the first threaded joint in threaded 
connections. 

Note: Superheaters, economizers and 
other pressure parts connected directly to 



the boiler or pressure vessel without inter- 
vening valves are part of the boiler or 
pressure vessel proper. 

(10) {^"Certificate inspection" means an 
inspection, the report of which is used by 
the Director as justification for issuing, 
withholding or revoking the inspection 
certificat e, and may consist of an internal 
or a general in s pection . The term certifi- 
cate inspection also applies to the exter- 
nal inspection performed in accordance 
with these Rules whether or not a certifi- 
cate is intended to be issued as a result of 
the inspection. 

(1 1) (6) "Certificate of competency" means the 
certificate issued to a person who has 
passed the inspector's examination given 
by the Board of Boiler and Pressure 
Vessel Rules and who is employed by an 
Authorized Inspection Agency. 

(12) "Commissioner" means the Commission- 
er of the North Carolina Department of 
Labor. 

(13) (40) "Condemned boiler or pressure ves- 
sel" means a boiler or pressure vessel: 

(a) that has been found not to comply with 
G.S. Chapter 95, Article 7A, and/ or 
these Rules; 

(b) that constitutes a menace to public 
safety; and 

(c) that cannot be repaired or altered so as 
to comply with G.S. Chapter 95, Arti- 
cle 7 A, and these Rules. 

(14) "Coil type water tube boiler" means a 
boiler having no steam space, such as a 
steam drum, whereby the heat transfer 
portion of the water containing space 
consists only of a coil of pipe or tubing. 

(15) "Deputy inspector" means a boiler and 
pressure vessel inspector employed by the 
Division. 

(16) (44)"Design criteria" means ASME and 
divisional Divisional requirements relat- 
ing to the mode of design and construc- 
tion of a boiler or pressure vessel. 
"Factor of safety" means the ratio of 
allowable stress to strength. 
(4-3)"Division" means the Boiler and 
Pressure Vessel Division of the North 
Carolina Department of Labor. 
fl-£)" External inspection" means an in- 
spection of the external surfaces and 
appurtenances of a power boiler or pres- 
sure vessel while it is in operation . An 
external inspection may entail the "shut- 



07} 



18) 



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PROPOSED RULES 



am 



(20) 



(21) 



(22) 



(23) 



(24) 



(25) 



(26) 



fa) 

fbl 

£d) 



(27) 



ting down" of a boiler or pressure vessel 
while it is in operation, including inspec- 
tion of internal surfaces. If the inspector 
determines this action is warranted. 
"Hydropneumatic storage tank" means a 
pressure vessel used for storage of water 
at ambient temperature and where a 
cushion of air is contained within the 
vessel. 

"Imminent danger" means any condition 
or practice in any location that a boiler or 
pressure vessel is being operated which is 
such that a danger exists, and which 
could reasonably be expected to cause 
death or serious physical harm immedi- 
ately or before the imminence of such 
danger can be eliminated through the 
enforcement procedures otherwise pro- 
vided by these Rules. 
"Inspector" means an inspector in posses- 
sion of a valid North Carolina Commis- 
sion and a National Board Commission 
including a deputy inspector, an insur- 
ance inspector, or an owner/user inspec- 
tor. 

"Insurance inspector" means the special 
inspector employed by an Insurance 
Company, and holding a valid North 
Carolina Commission and National Board 
Commission. 

(15)" Internal inspection" means as com- 
plete an examination as can reasonably be 
made of the internal and external surfaces 
and appurtenances of a power boiler 
while it is shut down. 
"Maximum allowable working pressure" 
means the lesser of the maximum allow- 
able working pressure as determined by 
the manufacturer in accordance with the 
requirements of the ASME code, or as 
determined by the Director in accordance 
with these Rules. 

{+8)" Menace to public safety" means a 
boiler or pressure vessel that cannot be 
operated without a substantial risk of 
injury to persons and property. 
"Miniature boiler" means a boiler which 
does not exceed any of the following: 

16 inch inside shell diameter; 

20 square feet of heating surface (does 

not a pply to electrically fired boilers); 

5 cubic feet volume; and 

100 psi maximum allowable working 

pressure. 
{+9)"National Board" means The Nation- 



al Board of Boiler and Pressure Vessel 
Inspectors, 1055 Crupper Avenue, Co- 
lumbus, Ohio 43229, whose membership 
is composed of the chief inspectors of 
government jurisdictions who are charged 
with the enforcement of the provisions of 
the ASME Code. 

(28) ( 8 ) "Commi ss ion, National — Board "Na- 
tional Board Commission " means the 
commission issued by the National Board 
to a holder of a certificate of competency 
who desires to make shop inspections or 
field in s pection s in accordance with the 
National Board bylaws and whose cm 1 
ploycr s ubmits the in s pector' s application 
to the national board for such commi s 
sieft has fulfilled the requirements of the 
National Board and who is in the full 
time employ of an Authorized Inspection 
Agency. 

(29) {39)"National Board Inspection Code" 
means the inspection handbook published 
by the National Board, as adopted by the 
divi s ion Division . 

(30) £4-6)" Nonstandard boiler or pressure 
vessel" means: 

(a) power boilers contracted for or installed 
before December 7, 1935; 

(b) heating boilers contracted for or in- 
stalled before January 1, 1951; 

(c) pressure vessels contracted for or in- 
stalled before January 1, 1976; 

(d) non ASME Code constructed hydro - 
pneumatic storage tanks containing 
water under pressure at ambient tem- 
peratures contracted for or installed 
before January 1, 1986; ftftd 

(e) unfircd — pre ss ure — vessels — used — in air 

conditioning/refrigeration s y s tem s 

operated entirely full of water or other 
liquid which — is not materially — more 
hazardous water contracted for or in 
stalled before July 1 , — 19 8 5, provided 
the owner or user has registered the 
ve s sel with the divi s ion prior February 
2 8 , 19 8 7, and the manufacturer of s uch 
vessel provide s an extended warranty or 
s imilar protection when the Commis 
s ioncr determines that such vessel may 
be operated without s eriou s threat to 
life or property. — At the time the own 
cr or user registers the vessel he s hall 
provide full documentation regarding 
the date the vessel was contracted for, 
the date the vessel was installed, the 



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1079 



PROPOSED RULES 



Hi 



(31 



(32) 



(33) 
(34) 



age of the ve s sel, the date the owner or 
user accepted the vessel, a oopy of any 
in s urance policy covering the vessel and 
a full explanation of the location of the 
vessel including its proximity to electric 
wiring or conduits and an analysis of 
any possible damage or injury to per 
sens — ef — property — that — would — occur 
should the vessel rupture. — Following 
s uch registration and application, the 
Commissioner shall make hi s decision 
concerning — the — type — of warranty — or 
similar protection that will be required 
within 30 days immediately following 
the receipt of the registration and appli 
cation, boilers or pressure vessels for 
which the ASME Code is not intended 
to apply, other than those boilers and 
pressure vessels to which the term 
North Carolina Special applies; and 

NOTE: T-h4s — classification — includes 

ASME Code con s tructed boiler and pres 
s ure ve s sels installed or contracted for 
prior to the enactment of applicable legi s 
lation regulating its use. 

hydropneumatic storage tanks installed 
at a distance of not less than 250 feet 
from a buildin g of public assembly, 
apartment house, or residence, and 
provided with overpressure protection. 
"Normal working hours" means between 



(35) 



the hours of 6^00 AN1 and 8^0 PM. 
Monday through Friday, except for state 
recognized holidays. 

(9)"Commission, North Carolina "North 
Carolina Commission " means the com- 
mission card issued by the Board, to 
holders of certificates of compet e ncy a 
National Board Commission, authorizing 
them to conduct shop and field inspec- 
tions in this State. 
"NPS" means nominal pipe size. 
(24)"Nuclear energy system" means and 
refers to any closed vessel in which water 
is heated, steam is generated, steam is 
superheated, or any combination thereof 
under pressure or vacuum for use exter- 
nally to itself by the direct application of 
heat from nuclear energy and associated 
components, vessels, piping systems, 
pumps, valves, storage tanks, and appur 
tenance s , as "appurtenances" is used in 
Section HI of ASME Code, appurtenanc- 
es. 
"Operating pressure" means the pressure 



of the lowest set safety valve installed on 
the boiler or pressure vessel. 
(36) (33)"Owner or user" means any person 
or legal entity responsible for the safe 
operation of any boiler or pressure vessel 
installed in this State. This term shall 
also apply to a contractor, installer, or 
agent of the owner or user, as applicable. 
(33)"Pressure piping" means piping 
including welded piping, external to 
power boilers from the boiler proper to 
the required stop valve(s). 
{24)"Pressure vessel proper"; see boiler 
or pressure vessel proper. 
(24)"PSIG" means pounds per square 
inch gauge. 



(37) 

(38) 
(39) 
(40> 



(1 4 )"Gencral in s pection" — means as com 
plctc an examination as can reasonably be 
made of the internal and external surfaces 
and appurtenances of a heating boiler or 
pres s ure vessel preferably while it i s in 

operation. A general — inspection may 

entail the "shutting down" of a heating 
boiler or pressure vessel — for a closer 
examination if an authorized inspector 
feels this action is warranted. "Reinspec- 
tion" means as complete an examination 
as is necessary to verify that any repair 
or corrective action required as a result 
of a certificate inspection is completed. 

(41) "Safety valve" means any safety valve, 
safety relief valve, pressure relief valve, 
or non-reclosing device intended to pre- 
vent overpressurization of a boiler or 
pressure vessel. 

(42) {36)"Shop inspection" means an inspec- 
tion performed by a s tate an inspector 
pursuant to an inspection service agree- 
ment whereby the fabrication process tor 
a boiler or pressure vessel is inspected. 
or the repair or alteration of a boiler or 
pressure vessel is observed to ensure 
compliance with ASME and the National 
Board. 

(43) {33)"Special inspection" means any in- 
spection performed by the state a deputy 
inspector other than a regularly scheduled 
inspection and includes instances where 
the original inspection was rescheduled 
due to the owner' s or user' s failure to 
prepare the boiler or pres s ure ve s sel after 
notification . Special inspection also 
includes the p erformance of an inspection 
by a deputy inspector which requires that 
the inspector make a special trip to meet 



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PROPOSED RULES 



the needs of the individual or organiza- 
tion requesting the inspection, including 
performing certificate inspections during 
hours other than normal working hours, 
and inspection of field repairs and alter- 
ations. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0103 INCORPORATED STANDARDS 

The following standards are incorporated by 
reference elsewhere in these Rules. These stan- 
dards are available for public inspection at the 
office of the Director and may be purchased at the 
address in this Rule. The prices listed in this Rule 
reflect the price as of the date of adoption of this 
Rule. For current prices, the organization listed in 
this Rule should be contacted. 

(1) National Board Inspection Code (NBIC) 
National Board of Boiler and Pressure 
Vessel Inspectors, 

1055 Crupper Avenue, Columbus, Ohio 

43229 

phone number: (614) 888-8320 

cost: fifty dollars ($50.00). 

(2) American Society of Mechanical Engi- 
neers (ASME) Boiler and Pressure Vessel 
Code 

American Society of Mechanical Engi- 
neers, United Engineering Center, PO 
Box 3199, Grand Central Station. New 
York. New York 10163 
phone number: 1-800-THE-ASME. 
cost: four thousand seven hundred and 
fifty three dollars ($4,753.00). 

(3) North Carolina State Building Code 
North Carolina Department of Insurance. 
Code Council Section. PO Box 26387, 
Raleigh. NC 27611 

phone number: (919) 733-3901 

cost: two hundred and fifty dollars 

($250.00). 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 

SECTION .0200 - ADMINISTRATION 

.0201 NAME: ADDRESS 

(a) The Boiler and Pressure Vessel Division, 
which administers the provisions of Article 7A of 
G.S. Chapter 95, is located in the Raleigh office of 
the department on the corner of Edenton and 
Salisbury Streets. 

(b) Address correspondence to: 

Boiler and Pressure Vessel Division 



North Carolina Department of Labor 

4 West Edenton Street 

Raleigh, North Carolina 27601 

Telephone (919) 733-2383 
Fax (919) 733 6197 733-0917. 

Statutory Authority G.S. 95-4; 95-69.12. 

.0202 INSPECTOR QUALIFICATION 

(a) Applicants for a certificate of competency 
shall sati s fy the requirement of G.S. 95 69.15(c). 
Inspectors performing certificate inspections shall 
be in possession of a valid North Carolina 
Commission and National Board Commission. 
Inspectors performing nuclear inservice inspection 
shall be in possession of a valid North Carolina 
Commission and shall meet the additional 
requirements of the ASME Code and the National 
Board, including possession of the a pplicable 
endorsements to the National Board Commission. 

(b) A Certificate of Competency shall be issued 
to an inspector who satisfactorily passes an 
examination written and graded by the National 
Board and administered by the Board. The 
Certificate of Competency authorizes an individual 
to apply to the National Board for a National 
Board Commission. In order to take the North 
Carolina — Board of Boiler and — Pres s ure Vessel 
Rule s ' examination [see G.S. 95-69. 15(c)(1)], an 
applicant shall meet one of the following 
qualifications: 

(1) a degree in mechanical engineering plus 
one year of experience in design, 
construction, operation, or inspection of 
high-pressure boilers and pressure 
vessels; 

(2) a degree in a branch of engineering, 
other than mechanical engineering plus 
two years of experience in construction, 
operation, or inspection of 
high-pressure boilers and pressure 
vessels; or 

(3) the equivalent of a high school 
education plus three years experience: 

(A) in high-pressure boiler and pressure 
vessel construction or repair; 

(B) as an operating engineer in charge of 
high-pressure boiler operations; or 

(C) as an inspector of high-pressure 
boilers and pressure vessels. 

(c) Applications for the examination are 
available from the director — and Director- 
Completed applications shall contain an accurate 
educational and employment history. 

(d) The Board of Boiler and Pressure Ves s el 



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1081 



PROPOSED RULES 



Rules' examination is prepared and graded by the 
National Board and : 

(1) covers the construction, installation, 
operation, maintenance and repair of 
boilers and pressure vessels and their 
appurtenances; 

(2) is given on the first Wednesday and 
one-half day Thursday in March, June, 
September, and December at a site 
selected by the director; and Director, 
provided that a minimum of four 
applicants are registered; and 

(3) is administered upon payment to the 
Department of Labor of a fee of 
thirty five dollars ($35.00) fifty dollars 
($50.00) which is also required when 
the examination is retaken by an 
unsuccessful applicant. 

(e) Succes s ful — applicant s — w4H — be — issued 
certificates of competency by the board, s igned by 
the chairper s on of the board and the director, 
when — employed — by — &h — authorized — inspection 
agency. A grade of 70 percent or greater must be 
attained to achieve a passing grade on the 
examination. 

(f) When requested by the employing Authorized 
Inspection Agency, a North Carolina Commission, 
bearing the signature of the chairperson of the 
Board, shall be issued to persons holding a valid 
National Board Commission, upon payment of the 
applicable fee. 



Commission shall be returned by the inspector to 
the divi s ion Division upon termination of 
employment. 

(e) A North Carolina commi s sion Commission 
may be suspended or revoked by the board, in 
accordance with G.S. 95-69.17 for incompetence, 
untrustworthiness or willful falsification of any 
statement in an application or inspection report. 
The Board shall give notice of the commencement 
of proceedings for suspension or revocation of a 
commission pursuant to G.S. 150B-23. A North 
Carolina Commission may be suspended prior to 
the hearing if the Board determines that the public 
health, safety or welfare requires this action. In 
this case, the proceedings will be promptly 
commenced and determined. The Board's decision 
regarding the competency of an inspector shall be 
determined after consideration of the knowledge, 
skill, and care ordinarily possessed and employed 
by boiler and pressure vessel inspection personnel 
in good standing. Industry custom and practice 
shall be considered but are not determinative. 
Failure to perform the inspections in accordance 
with these rules shall constitute incompetence. 
The inspector will be given the opportunity to 
show that he is_ performing his duties in a 
competent manner and that suspension or 
revocation is unwarranted. If the inspector 
believes that the decision of the Board is not 
warranted, he shall file for a judicial hearing 
pursuant to Article 4 of G.S. 150B. 



Statutory Authority G.S. 95-69.11; 95-69.15. 



Statutory Authority G.S. 95-69.11; 95-69.15. 



.0203 NORTH CAROLINA COMMISSION 

(a) When requested by the employer, a North 
Carolina commi ss ion card Commission , bearing 
the signatures signature of the chairperson of the 
board and director , will be issued by the board 
Board to persons meeting the qualifications in G.S. 
95 69.15(a) and G.S. 95 69.15(c) holding a valid 
National Board Commission. 

(b) Requests for a North Carolina commis s ion 
eafd Commission are processed upon proof of a 

certificate ef- — competency National Board 

Commission issued by the National Board and 
payment of a ten dollar ($10.00) fee fifteen dollar 
($15.00) fee to the Department of Labor . 

(c) North Carolina commission — cards 
Commissions are valid through December 31, at 
which time each inspector the inspector's employer 
shall submit a renewal application and a ten dollar 
($10.00) fee fifteen dollar ($15.00) fee to the 
Department of Labor . 

(d) The North Carolina commission — eafd 



.0204 CONFLICT OF INTEREST 

An inspector shall not engage in any 
profit-making enterprise relating to boilers, 
pressure vessels, nuclear energy systems, or their 
appurtenances, aside from his or her regular 
employment as an inspector nor engage in ef any 
conduct that would otherwise constitute a conflict 
of interest. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0205 OWNER-USER INSPECTION 
AGENCY 

(a) A company seeking to in s titute — a* 
owner user inspection agency perform inspections 
of its own boilers and pressure vessels shall file an 
application with the director Director and obtain 
approval from the Board of Boiler and Pressure 
Vessel Rules . 

(b) The company shall, in its application, 
designate an experienced technician or a supervisor 



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PROPOSED RULES 



who shall be a registered professional engineer 
within its employ as its inspector supervisor , who, 
upon approval of the application, shall: 

(1) ascertain that the company's inspectors, 
pursuant to Rules .0202 and .0203 are 
issued certificates of competency and 
owner-user commission cards; 

(2) supervise inspections of boilers and 
pressure vessels and see that an 
inspection report, signed by the 
owner-user inspector, is filed at the 
equipment site; 

(3) promptly notify the director Director of 
any unsafe boiler or pressure vessel 
which presents a condition of imminent 
danger ; 

(4) maintain a master file of inspection 
records which shall be made available 
for examination by the Director or his 
representative during business hours : 

(A) identifying each boiler and pressure 
vessel by serial number and 
abbreviated description; and 

(B) showing the date of the last and next 
scheduled inspection; and 

{€) — made available for examination by the 
director or his repre s entative during 
busines s hours; and 

(5) fi4e7 on a date mutually agreed upon 
with the director Director, file an 
annual statement signed by the 

supervising inspector supervisor , 

showing the number of pressure vessels 
and certifying that each inspection was 
performed pursuant to these Rules, 
accompanied by a filing fee of fifteen 
dollars ($15.00) per vessel. 

(c) Inspection certificates are not required for 
boilers and pressure vessels inspected under an 
owner-user program. 

Statutory Authority G.S. 95-69.11; 95-69.15. 

.0206 OWNER OR USER TO NOTIFY 
DIRECTOR OF ACCIDENT 

(a) When an accident renders a boiler, pressure 
vessel, or nuclear energy system inoperative, or 
causes damage to property, personal injury, or 
death, the owner or user shall immediately notify 
the director Director in writing by the most 
expedient means available. This notification shall 
be followed by a detailed written description and 
describe the accident in detail . 

{&) — In ease of a serious accident involving 
personal injury or explosion, the owner or u s er 



s hall immediately notify the — director by telephone 
or telegraph. 

{e)£b) No person shall remove or disturb the 
boiler, pressure vessel, or nuclear energy system, 
or any of its parts, before an authorized in s pection 
investigation by the Director has been made, 
except for the purpose of conserving life or 
limiting consequential damages. 

(c) Insurance inspectors who elect to investigate 
an accident may do so after the Director has 
concluded his investigation. Any insurance 
inspector who elects to investigate an accident 
shall submit an accident report to the Director 
within 10 days of the completion of the 
investigation. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0207 INSPECTION REPORTS 

Sp e cial Inspectors shall file: 

(1) inspection reports with the director 
Director within 30 K) days after each 
certificate inspection; and 

(2) inspection reports with the director 
Director regarding all hazardou s 
conditions of imminent danger , or any 
condition that would result in the 
insurance company's refusal to issue or 
continue an insurance policy on the 
boiler, pressure vessel, or nuclear energy 
system, immediately. 

Statutory Authority G.S. 95-69.11; 95-69. 14. 

.0208 INSURANCE COMPANIES TO 
NOTIFY DIRECTOR 

(a) All insurance companies shall notify the 
director Director by reference to the applicable 
North Carolina serial number and owner/user's 
name and address within 30 K) days regarding 
actions taken on all boiler, pressure vessel, or 
nuclear installation risks, including but not limited 
to: 

(1) the issuance of a policy; 

(2) the cancellation of a policy; ef 

(3) the non-renewal or suspension of a 
policy because of unsafe conditions; or 

(4) removal of a boiler or pressure vessel 
from service. 

(b) Should the inspector, during the course of 
making an inspection, find a condition of imminent 
danger, he shall immediately notify the Director by 
telephone or fax in order that steps might be taken 
to remove the vessel from service. 

(c) The inspector shall notify the Director 



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1083 



PROPOSED RULES 



immediately upon becoming aware of an accident 
which renders a boiler, pressure vessel, or nuclear 
energy system inoperative or causes damage to 
property, personal injury, or death. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0209 CONTRACTORS TO NOTIFY 
DIRECTOR 

All contractors installing boilers or pressure 
vessels in any public building or in an apartment 
house of s ix families or more subject to inspection 
in accordance with these Rules shall report the 
installation within 30 day s to the director, notify 
the Director and request a certificate inspection not 
less than 30 days prior to placing equipment in 
operation. Equipment shall not be operated prior 
to the owner or user obtaining an inspection 
certificate. Payment of the initial inspection fee 
shall be the responsibility of the requesting 
contractor. 



Statutory Authority G.S. 95-69.11; 95-69. 14. 

. 02 1 SHOP INSPECTION AND NATIONAL 
BOARD R STAMP QUALIFICATION 
AUDITS 

(a) Manufacturers seeking to employ state 
deputy inspectors to inspect their fabrication 
process for boilers, pressure vessels, and nuclear 
energy system components, pursuant to the ASME 
Code Code, shall enter into a written agreement 
with the North Carolina Department of Labor for 
this purpose. 

fb) The Department of Labor shall perform the 
qualification audit for issuance of the National 
Board R symbol stamp pursuant to the National 
Board Inspection Code as adopted, except as 
modified herein. 

(c) The Department of Labor shall not perform 
the qualification audit for those individuals or 
organizations for which the Department of Labor 
provides inspection services, for those individuals 
and organizations in possession of or concurrently 
applying for an ASME Code symbol stamp, or for 
those individuals or organizations which 
specifically request the audit be performed by the 
National Board. 

(d) An audit to be performed by the Department 
will be scheduled upon receipt of request by the 
National Board. Payment of the fee as required in 
Rule .0213 of this Section shall be the 
responsibility of the individual or organization 
being audited. Should an applicant not be 
successful in obtaining accreditation, the applicable 



fee shall be paid before a new audit is performed. 
Statutory Authority G.S. 95-69.11; 95-69.14. 

.0211 CERTD7ICATE INSPECTIONS 

(a) An authorized inspector shall inspect all 
boilers and pressure vessels at the time of 
installation and at regular intervals thereafter, as 
provided in this Rule. 

(b) Subject to the exceptions in Paragraphs (c) 
and (d) of this Rule, and after seven days notice is 
given to the owner or user, an authorized inspector 
shall conduct an internal inspection for a power 
boiler at the time of installation and annually 
thereafter. S« Three to nine months after the 
interna] inspection, an external inspection shall be 
performed. Issuance of the inspection certificate 
shall be based on the results of the internal 
inspection. 

(c) In place of the first internal inspection for a 
new power boiler being placed into service for the 
first time , an inspector may conduct a general an 
external inspection if the inspector feel s determines 
that data sufficient to determine compliance with 
the rules of this Chapter these Rules can be 
gathered from a general an external inspection. 

(d) Miniature boiler s- and boilers, coil-type 
watertube boilers boilers, and boilers heating a 
fluid other than water which do not produce steam 
or vapor operating as power boilers shall undergo 
a — general an external inspection annually. 
Miniature boilers and boilers, coil-type watertube 
boilers and boilers heating a fluid other than water 
operating as heating boilers shall undergo a 
general an external inspection biennially. 

(e) Heating boilers and pressure vessels.! except 
hydropneumatic storage tanks, shall undergo a 
general an external inspection biennially. 

(f) Owner-user inspectors shall conduct 
inspections for boilers and pressure vessels as 
prescribed in this Rule. 

fg} — Boiler and pressure vessel components of 
nuclear energy systems shall be in s pected pursuant 
to Section XI of the ASME Code. 

{h-Hg) Authorized in s pectors Inspectors may 
order coverings removed, internal inspections, 
external inspections, control and safety device 
testing or calibration , or pressure tests whenever 
conditions warrant further evaluation of a boiler, 
pressure vessel, or nuclear energy system. 

(h) Hydropneumatic storage tanks shall undergo 
an external inspection every five years, except that 
hydropneumatic storage tanks installed at a 
distance of not less than 250 feet from a building 
of public assembly or apartment house need not be 



1084 



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October 14, 1994 



PROPOSED RULES 



inspected, nor receive an inspection certificate. 

(j) When the inspector or Director determines 
that a certificate can not be issued as a result of an 
inspection, the boiler or pressure vessel shall be 
reinspected after the necessary repairs are made. 

(j) Inspections shall be performed in accordance 
with the National Board Inspection Code, Chapter 
H, Inspection of Boilers and Pressure Vessels, 
1992 edition, including subsequent amendments 
and editions, which is hereby incorporated by 
reference. The inspector may require controls and 
safety devices to be disassembled, tested, checked 
or calibrated as necessary to ensure their proper 
operation. 

(TO The Director may consider extending an 
existing inspection certificate for a power boiler 
for a period not exceeding 60 days beyond the 
certificate expiration date, should an inspection at 
the specified period result in undue hardship for 
the owner or user. The owner or user shall submit 
a written request to extend an existing inspection 
certificate, providing justification for an extension. 
The request shall include a report from a 
commissioned inspector of an external inspection 
which shall have been performed no earlier than 
60 days before the certificate expiration date, and 
the inspection report shall include a 
recommendation from the inspector for an 
extension to the inspection certificate. 

(1) The inspection frequency established by this 
Rule may be modified by the Director for 
individual boilers and pressure vessels if the 
Director determines that due to unique conditions, 
the frequency established herein is not appropriate, 
and that the safety attained by the normal 
inspection frequency will be otherwise obtained. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0212 PREPARATION FOR INSPECTION 

(a) The owner or user shall prepare a power 
boiler for internal inspection by: 

(1) cooling the boiler, furnace, and setting 
so as to prevent damage to any part; 

(2) draining and washing thoroughly 
internal parts to be inspected; inspected, 
including disassembly and cleaning of 
float bowl type low-water fuel cutoff 
devices and associated piping plugs or 
caps; 

(3) removing wash-out, drain, and 
inspection plugs; 

(4) removing enough of the grates in an 
internally fired boiler to permit 
inspection; 



(5) removing enough brickwork, 
refractory, and insulation to permit 
inspection; 

(6) removing manhole and handhole plates; 

(7) preparing the controls and safety 
devices for inspection and testing; and 

(8) preventing leakage of water, steam, or 
vapors into boiler interiors that would 
endanger personnel, personnel; 

(9) providing adequate ventilation to 
prevent the accumulation of hazardous 
gasses; and 

(10) providing, when required, a competent 
person, as defined under the North 
Carolina Occupational Safety & Health 
standard for confined spaces, to assist 
the inspector in the performance of his 
inspection. 

(b) In addition to the requirements in Paragraph 
(a) of this Rule, the owner or user shall prepare a 
power boiler that has a manhole and which is 
connected to a common header with another boiler 
for internal inspection by: 

(1) closing and tagging, or padlocking, the 
nonreturn and steam stop valves and 
opening all drain valves or cocks 
located between the nonreturn and 
steam stop valves; 

(2) closing and tagging, or padlocking, the 
feed and check valves and opening all 
drain valves or cocks located between 
the feed and check valves; 

(3) draining boiler and then closing and 
padlocking the blowoff valves; 

(4) disconnecting, at the request of the 
inspector, blowoff lines between 
pressure parts and valves; 

(5) opening all drains and vent lines; and 

(6) after complying with all other 
provisions of Rule .0212, open opening 
the manhole covers. 

(c) The owner or u s er s hall prepare a heating 
boiler, — water tube coiled type boiler, — miniature 
boiler, or pre s sure vessel which is required by the 
inspector to be in s pected internally by: 

{4} removing manhole and handhole plates, 

as — weH — as — cleaning — and — in s pection 
plugs; 

{3) cleaning internal surface s and 

adequately ventilating — aH interior 

spaces; 

{$) i s olating the unit to the extent that 

internal — temperature, — pressure, — and 
environment — afe — net — injurious — te 
personnel and arc under strict control; 



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1085 



PROPOSED RULES 



(4) removing — l i nings — &r — covering s — as 

directed by the inspector upon hi s or 
her arrival; and 

{§) preparing pressure gauges fef 

in s pection or testing. The owner or 
user need not make any special 
preparation for an external inspection of 
a boiler or pressure vessel, except that 
if the inspector requires the boiler or 
pressure vessel to be shut down for a 
closer inspection, the boiler or pressure 
vessel shall be prepared as is required 
for the internal inspection of a power 
boiler. 

Statutory Authority G.S. 95-69.11. 

.0213 FEES 

(a) An eighteen dollar ($1 8 .00) A twenty dollar 
($20.00) certificate and processing fee for each 
boiler or pressure vessel inspected by a Special an 
Insurance Inspector and found to be in compliance 
with these Rules shall be paid to the North 
Carolina Department of Labor. 

(b) An inspection and certificate fee shall be 
paid to the North Carolina Department of Labor 
for each boiler or pressure vessel inspected by the 
State, a deputy inspector as follows: 

(1) General Externa l Inspection [.0101(1 4 )] 

(A) ve ss el — entry — aet — required pressure 
vessels - $25.00; 

(B) vessel entry required boilers - $35.00. 
(3) External Inspection [.0101(13)] 

$25.00; 
(21 0)lnternal Inspection [.0101(15)] 

(A) vessel entry not required - $35.00 
$50.00 ; 

(B) vessel entry required - $100.00. 

ft) if heating — surface — is — less — then 

3.000 s q. ft $ 8 0.00; 

fit) if heating surface is 3,000 sq. ft. 

or more — $100.00; 
(3) Inspections performed outside of 
normal working hours shall be 
considered special inspections and the 
applicable fees shall apply, including 
the fee for working outside of normal 
working hours. 

(c) A fee of fifty dollars ($50.00) sixty dollars 
($60.00) per hour, including travel time, plus 
expenses including travel, hotel and meals shall be 
paid to the North Carolina Department of Labor 
for each special inspection [.0101(27)]. The fee 
for special in s pection s performed outside of normal 
working hour s i s computed at the s hop rate. 



(d) A fee of one hundred eighty five dollars 
($1 8 5.00) two hundred forty dollars ($240.00) per 
one-half day (four hours) or any part of one-half 
day or three — hundred — dollars — ($300.00) four 
hundred dollars ($400.00) for one day (four to 
eight hours) or one thousand four hundred dollars 
($1 4 00.00) per week (36 to 4 hours), plus, in 
either case, all expenses including travel hotel, and 
meals shall be paid to the North Carolina 
Department of Labor for each shop inspection 
[.0101(26)]. This fee doc s not include the regular 
fee for inspection when the boiler or pressure 
vessel i s installed. Shop inspections performed 
outside — e# — normal — working — hour s — shall — be 
computed at one and one half times the normal 
rate plus expen s e s . — Normal working hours shall 
be between the hour s of 6:00 AM and 8 :00 PM, 

Monday — through Friday, except — fer — state 

recognized holiday s . 

(e) A fee of two hundred dollars ($200.00) two 
hundred eighty dollars ($280.00) per one-half day 
(four hours) or any part of one-half day or three 
hundred fifty dollars ($350.00) four hundred sixty 
dollars ($460.00) for one day (four to eight hours) 
or one thousand six hundred dollar s ($1,600) per 
week (36 to 4 hours) , plus, in either case, all 
expenses including travel hotel, and meals shall be 
paid to the North Carolina Department of Labor 
for each nuclear inspection. Thi s fee doc s not 
include the regular fee for inspection when the 

boiler or pressure vessel is installed. Nuclear 

in s pections performed outside of normal working 
hour s s hall be computed at one and one half times 
the normal rate plu s expenses. — Normal working 
hour s s hall be between the hours of 6:00 AM and 
8 :00 PM, Monday through Friday, except for state 
recognized holidays. 

(f) A foe of four hundred dollar s ($ 4 00.00) per 
day (up to eight hours) plus all expenses, including 
travel, hotel and meal s s hall be paid to the North 
Carolina Department of Labor for each — audit- 
Audits performed outside of normal working hour s 
s hall be computed at seventy five dollars ($75.00) 
per hour. Normal working hour s s hall be between 
the hours of 6:00 AM and 8:00 PM, Monday 
through — Friday, — except — fef — state — recognized 
holiday s . Audits include activities other than those 
identified a s inspections, including: 



W- 



reviews — and s urv 



eys- 



for ASME and 



National Board s tamp 

renewal, and 

audi 



issuance and 



f2-) audits pursuant to evaluation for the 

issuance of North Carolina Special s . A 
fee of three hundred twenty dollars 
($320.00) per one-half day (four hours) 



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PROPOSED RULES 



or any part of one-half day or five 

hundred thirty dollars ($530.00) for one 

day (four to eight hours), plus, in either 

case, all expenses including travel 

hotel, and meals shall be paid to the 

North Carolina Department of Labor 

for audits. 

(g) Fees for inspections and audits performed by 

the Director, his designee, or a deputy inspector 

outside of normal working hours or in excess of 

eight hours per inspection visit shall include an 

additional thirty dollar ($30.00) fee per hour in 

addition to the normal inspection or audit fee. 

(h) Fees shall be negotiable for annual contracts 
for shop inspections whereby the organization 
requesting inspection services requires the use of 
the inspector on a full time basis (thirty six to 
forty hours per week for a period of fifty two 
weeks). Payment of the fees shall be made in 
monthly installments. 

(i) Printed information derived from the 
database for boilers and pressure vessels 
maintained by the Division is available for public 
scrutiny. Charges for providing this service shall 
be payable upon receipt of invoice to the North 
Carolina Department of Labor. Charges for this 
service are as follows: 



.0301 INSPECTION DOCUMENTATION 

(a) — Upon receipt of the inspection report and 
fee, the director s hall determine whether or not a 
boiler or pressure — vessel — complie s — with — GrSr 
Chapter 95, Article 7A, and these Rules. 

fb) — If the director determine s that the boiler or 
pressure vessel is in compliance with Chapter 95, 
Article 7A, and these Rules, he shall immediately 
issue an inspection certificate authorizing use of 
the boiler or pre ss ure vessel. 

{e) — If the director determines that the boiler or 
pressure vessel i s not in compliance with G.S. 
Chapter 95, Article 7 A, or these Rules, but can be 
repaired or altered so as to comply with G.S. 
Chapter 95, Article 7A, and these Rules, he shall 
so notify the owner or u s er by letter within 10 
working — days — and — s pecify — what — repair s — of 
alteration s are required. 

fd) — The owner or u s er shall return the letter to 
the director within 15 day s of its receipt: 

{4-) certifying that the required repair s or 

alteration s have been completed; or 

{2} explaining any — delay and requesting 

additional time to complete the repair s 
or alterations; or 

(3) certifying that use of the boiler or 

pre ss ure ve s sel ha s been di s continued. 
The director may grant a grace period of up to 60 
days from the certificate expiration date. 

{e) — Upon completion of the required repair s or 
alterations, the director shall issue an inspection 



(1) Requests for database information for 
which the Division has created the 
information selection criteria and 
printout format for its own use, and 
which can be furnished without the certificate for the boiler or pre s sure ves s el. 
need for special programming will be 
furnished for a charge of twenty dollars 
($20.00) plus twenty-five cents ($0.25) 

Egl P a g e - 

(2) Requests for database information 



which requires special selection criteria 

or printout format, and which requires 

the need for special programming 

services to derive the requested 

information or format, will be furnished 

for a charge of seventy-five dollars 

($75.00) plus twenty-five cents ($0.25) 

per page. 

(j) Copies of inspection reports or other 

inspection records may be provided upon written 

request. Copies of these records are available for 

a charge of fifteen dollars ($15.00) p er request and 

twenty-five cents ($0.25) per page. 

Statutory Authority G.S. 95-69.11. 

SECTION .0300 - ENFORCEMENT 
OF STANDARDS 



(f) — If the director determine s that the boiler or 
pressure vessel is not in compliance with G.S. 
Chapter 95, Article 7 A, or these Rules and cannot 
be repaired or altered s o as to comply with G.S. 
Chapter 95, Article 7A, and these Rules, he s hall 
so notify the owner or user by letter, within 10 
working days, that the boiler or pressure vessel is 
condemned and that its operation i s thereafter 
unauthorized. 

fg) — Upon receipt of the letter notifying the 
owner or user that repair s or alteration s arc 
required, or that the boiler or pressure ve ss el is 
condemned, the owner or user shall have 30 days 
in which to appeal that determination to the 
commi s sioner. 

{¥) — The deci s ion of the director shall not be 
s tayed p e nding review by the commissioner. 

(t) — Upon appeal, a hearing s hall b e conducted 
pur s uant to Article 3 of G.S. Chapter 150B. 

^j) The deci s ion of the commi ss ioner s hall 

constitute a final agency decision subject to judicial 
review pursuant to Article 4 of G.S. — Chapter 
+50B, 



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1087 



PROPOSED RULES 



(a) The inspector shall document the results of 
the inspection on an inspection report. 

(b) If the inspector finds that the boiler or 
pressure vessel is in compliance with these Rules, 
he shall indicate on the inspection report that the 
boiler or pressure vessel is satisfactory. 

(c) If the inspector finds the boiler or pressure 
vessel is not in compliance with these Rules, he 
shall specify in detail on the inspection report the 
deficiencies and the required repairs or corrective 
action. 

(d) The inspector shall determine if the 
deficiency is such that operation of the boiler or 
pressure vessel creates a condition of imminent 
danger. If a condition of imminent danger exists, 
the inspector shall state on the inspection report 
that operation of the boiler or pressure vessel 
should cease immediately until completion of the 
necessary repairs or corrective action. The 
inspector shall immediately notify the Director of 
any condition of imminent danger. 

(e) If the condition of the boiler or pressure 
vessel is such that repairs or corrective action can 
not bring the boiler or pressure vessel into 
compliance, he shall indicate on the inspection 
report that the boiler or pressure vessel should be 
condemned from further use. 

(f) For inspections revealing deficiencies, the 
inspector shall request the owner/user to sign the 
ins pection report acknowledging receipt of a copy 
and confirming that the inspector explained the 
necessary repairs or corrective action. 

(g) The inspector shall leave a copy of the 
inspection report with the owner/user, and submit 
the original to the Director. 

(h) The inspector or the Division, at the 
Director's discretion, shall issue an invoice to the 
owner or user for the inspections made and for 
issuance of the inspection certificate. The owner 
or user shall remit payment as indicated on the 
invoice within 15 days to the North Carolina 
Department of Labor. 

Statutory Authority G.S. 95-69.11; 95-69.16. 

.0302 CERTIFICATE ISSUANCE 

fa) If, during the period for which a valid 

inspection — ccrtificat o — is — h* — effect, — the director 
determine s that a boiler or pressure vessel: 

fB docs not comply with G.S. Chapter 95, 

Article 7A, or the s e Rule; 

{3) constitutes a menace to public safety in 

its present condition, or will con s titute 
a menace to public s afety if not altered 
or repaired; and 



(3) can be repaired or altered to comply 

with G.S. Chapter 95, Article 7 A and 
the s e Rule s ; — then the director shall 
notify the owner or user by letter; 
(A) — s pecifying what repairs or alterations 

arc required; 
{B) — that continued operation of the boiler 
of — pre s sure — vessel — constitutes — a 
menace to public safety; and 
{€-) — that, to avoid injury to person s and 
property, the owner or user should 
immediately discontinue the use of the 
boiler or pre s sure vessel, with the 
understanding — that — the — inspection 
certificate will be suspended until the 
s pecified repairs or alteration s have 
been completed, thereby voluntarily 
waiving — any — rights — to — operate — the 
boiler — ef — pres s ure — ve s sel — granted 
under Article 7A, Chapter 95 of the 
General Statutes. 
{b) — The owner or u s er s hall return the letter to 
the director within 15 day s of its receipt: 

{+) certifying that the boiler or pressure 

ve ss el — has — been — repaired — altered — m 

compliance with the director' s 

specification s ; 

{3) indicating his intention to comply with 

the s tandard s of s afety for boilers and 
pressure ve s sels, with the understanding 
that the inspection certificate will be 
s uspended until the boiler or pressure 
vessel has been repaired or altered in 

compliance with the director' s 

specification s ; thereby voluntarily 

waiving any rights to operate the boiler 
or pre s sure ve ss el granted under Article 
7A, Chapter 95 of General Statutes; or 

(3) indicating hi s intention to continue the 

operation — of the — boiler — ©f — pressure 

ve s sel and recognizing that the director 

has — declared — the boiler — er — pressure 

vessel a public menace and that the 

director has advi s ed that the operation 

of the boiler or pressure vessel should 

be immediately suspended in order to 

avoid injury to person s and property. 

{e) — Where the owner or user acts pursuant to 

(b)(2) of thi s Rule, the director shall cau s e the 

in s pection certificate to — be su s pended, — thereby 

suspending operation of the boiler or pre ss ure 

vessel, until the s pecified repair s or alterations arc 

completed. 

{&) — Where the owner or user acts pursuant to 
(b)(3) — of this — Rule, — ef — fmte — te — return — letter 



1088 



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October 14, 1994 



PROPOSED RULES 



declaring the boiler or pres s ure vessel a menace to 
public safety within — 15 days of its receipt, the 
director, or hio designee, shall post, in the manner 
prescribed by (c) of thi s Rule, a notice as follows : 

The Director of the Boiler and Pressure 

Vessel Division of the North Carolina 
Department of Labor has declared the 

(boiler/pressur e vessel) e« the s e 

premises, — bearing the serial — number 
N€ , to be a MENACE 



TO PUBLIC SAFETY, in that its 
continued operation po s e s s ub s tantial 
risk of injury to persons and property. 
The director has advised the owner or 
U3er of this (boiler/pressure vessel) of 
repairs or alteration s that must be made 
fef — th+s — (boiler/pressure — vessel) — te 
comply with the standards of safety 
established by — the Commissioner of 
Labor. 

The owner or user, pursuant to G.S. 

96 69.17, has acted to continue the 
operation — ef- — (boiler/pressure — ve ss el) 
without these — repair s — or alterations, 
pending a hearing to determine if the 

inspection certificate fef tfrts 

(boiler/pressure vessel) w+H be 

suspended, 
(c) The notice described in (d) of this Rule shall 
be posted by the director: 

{+) in a prominent place on the boiler or 

pressure — vessel — needing — r e pair s — ef 



alterations; 



m- 



-Ht- 



-a prominent place 



-+R- 



-the 



establishment — where — th« — boiler — ef 

pres s ure vessel is being used so that it 

may be easily read by members of the 

public and employees. 

(f) — Where the owner or user acts pursuant to 

(b)(3) of thi s Rule, or fails to return the letter 

declaring the boiler or pressure vessel to be a 

menace to public s afety within — 15 day s of its 

receipt, the director shall, in addition to, and along 

with, action taken under (d) of thi s Rule: 



-an 



£4-) afford the — aggrieved — party 

opportunity fof a hearing, m 

accordance with G.S. Chapter 150B, to 
determine if the inspection certificate 
will be su s pended as of the date of the 
hearing; 

{S) obtain injunctive relief, on behalf of the 

commissioner, pursuant te GrSr 

95 69.11(6); or 

ify initiate proceedings under both (f)(1) 

and (f)(2) of this Rule. 



fg4 — The owner or user shall notify the director 
by letter, within 15 day s after he receives notice 
pursuant to (f)(1) of this Rule, requesting a hearing 
te — determine — if the in s pection certificate — witt 
suspended as of the date of the hearing. 

{&) — If the owner or user fails to notify the 
director by letter, within 15 day s after he receives 
notice pursuant to (f)(1) of this Rule, the director 

shall immediately s uspend the inspection 

certificate. 

(a) The Director or his designee shall review the 
inspection report and if he finds the boiler or 
pressure vessel to be in compliance with these 
Rules, issue an inspection certificate to the 
owner/user, pending receipt of payment. 

(b) The owner shall post the inspection 
certificate in a prominent place visible to the 
operator while reading the pressure. The 
certificate shall be placed under glass, or otherwise 
protected from the environment. 

Statutory Authority G.S. 95-69.11. 



,0303 INSPECTIONS REVEALING 
DEFICIENCIES 



fa) — If, during the period for which a valid 
inspection 



mng- 
ccrtificatc 



4s — in effect, — the- 



a- 
director 



determines that a boiler or pre ss ure ve s sel: 

{¥) doc s not comply with G.S. Chapter 95, 

Article 7 A, or these Rules; 
(3) constitutes a menace to public s afety; 



a no 



m- 



jmply 



cannot be repaired or altered to cor 
with G.S. Chapter 95, Article 7A, and 
these Rules. — Then, the director s hall 
notify the owner or user by letter that 
continued operation of the boiler or 
pressure vessel constitutes a menace to 
public safety and that, to avoid injury 
to person s and property, the owner or 
u s er should immediately discontinue the 
u s e the boiler or pres s ure vessel, with 
the understanding that th e inspection 
certificate — wtH — be — revoked — and — the 
boiler — ef — pre ss ure — ve ss el — w+H — be 
condemned, thereby voluntarily waiving 
any — rights — to operate the boiler or 
pres s ure vessel granted under Article 
7A, Chapter 95 of General Statutes. 
fb) — The owner or user shall return the letter to 
the director within 15 days of its receipt: 

ft) indicating his intention to comply with 

the standards of safety for boilers and 
pressure vessels, with the understanding 
that the in s pection certificate will be 



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1089 



PROPOSED RULES 



revoked — and — the — boiler — er — pressure 
ve ss el — w+H — be — condemned; — thereby 
voluntarily — waiving — ftfly — rights — te 
operate the boiler or pres s ure vessel 
granted under Article 7A, Chapter 95 
of the General Statutes; or 

(3) indicating his intention to continue the 

operation — of the — boiler — or pressure 

ve s sel and recognizing that the director 

has declared — the boiler or pressure 

vessel a public menace and that the 

director has advised that the operation 

of the boiler or pressure vessel should 

be immediately discontinued in order to 

avoid injury to person s and property. 

fe) — Where the owner or user act s pursuant to 

(b)(1) of this Rule, the director shall cause the 

boiler or pressure vessel to be condemned and the 

inspection certificate revoked. 

fd} — Where the owner or user act s pursuant to 
(b)(2) of this Rule, or fails to return the letter 
declaring the boiler or pressure vessel a menace to 
public safety within 15 days of its receipt, the 
director, or his designee, shall post, in the manner 
prescribed by (e) of this Rule, a notice as follows: 

The Director of the Boiler and Pressure 

Vessel Division of the North Carolina 
Department of Labor has declared the 

(boiler/pre ss ure vessel) en these 

premi s es, — bearing the serial — number 



N€- 



to be a MENACE 



TO PUBLIC SAFETY, 



-that- 



-m — tfrat — its 
continued operation po s es a s ub s tantial 
risk of injury to persons and property. 
The director ha s advi s ed the owner or 



user of this (boiler/pressure vessel) that 
thi s (boiler/pressure vessel) cannot be 
repaired or altered so as to comply with 
the s tandard s of safety established by 
the Commissioner of Labor. 

The owner or user, pursuant to G.S. 

95 69.17, has elected to continue the 

operation — ef- — this (boiler/pressure 

ve ss el), pending a hearing to determine 
if the — inspection — certificate — fef — this 
(boiler/pre ss ure vessel) will be revoked 

and the (boiler/pressure vessel) 

condemned. 
te) — The notice described in (d) of thi s Rule, 
shall be posted by the director: 

<4-) in a prominent place on the boiler or 

pressure vessel; and 

f2-) a prominent place in the establishment 

where the boiler or pressure vessel is 
being u s ed s o that it may be easily read 



by members of the public and employees. 
(f) — Where the owner or user acts pursuant to 
(b)(2) of this Rule, or fails to return the letter 
declaring the boiler or pressure vessel to be a 
menace to public safety within — 15 days of its 
receipt, the director shall, in addition to and along 
with action taken under (d) of thi s Rule: 



w- 



-ftft 



afford — the aggrieved — party 

opportunity fef a hearing, m 

accordance with G.S. Chapter 150B, to 
determine if the inspection certificate 
wiH — be — revoked — and — the — boiler — &r 
pressure ve ss el condemned as of the 
date of the hearing; 

(3j obtain injunctive relief, on behalf of the 

commissioner, pursuant te GrSr 



Chapter 95 69.11(6); or 



m- 



1) that case the 



initiate proceeding s under both (f)(1) 

and (f)(2) of this Rule. 
(g) The owner or user shall notify the director 
by letter, within 15 days after he receives notice 
pursuant to (f)(1) of this Rule, requesting a hearing 
to determine if the inspection certificate will be 
revoked — and — the — boiler — ef — pressure — vessel 
condemned as the date the hearing. 

{h) — If the owner or user fails to notify the 
director by letter, within 15 days after he receive s 
notice pursuant to (f)(1) thi s Rule, the director 
s hall immediately revoke the inspection certificate 
and condemn the boiler or pres s ure vessel. 

(a) The owner or user shall complete any 
required repairs or corrective action and request an 
additional inspection within 30 days of the 
inspection, except in cases where the boiler or 
pressure vessel is removed from service, in which 
case the owner or user shall send in written 
confirmation, signed by the owner or user, that use 
of the boiler or pressure vessel has been 
discontinued and that the boiler or pressure vessel 
has been removed from the source of energy. 

(b) Upon notification by the inspector of a boiler 
or pressure vessel for which continued operation 
creates a condition of imminent danger, the 
Director shall determine if the recommendations of 
the inspector are valid, and if sOj he shall 
immediately notify the owner or user by the most 
expedient means possible, followed by written 
notification within 15 days stating that the use of 
the boiler or pressure vessel shall be discontinued 
immediately. 

(c) The owner or user may continue operation of 
the boiler or pressure vessel, including those 
boilers or pressure vessels which are condemned, 
during the 30 day period, except that this provision 
shall not apply to boilers and pressure vessels after 



1090 



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PROPOSED RULES 



verbal notification by the Director to the owner or 
user that a condition of imminent danger exists. 

(d) After completion of any required repairs or 
corrective action, the boiler or pressure vessel 
shall be reinspected to the extent necessary to 
verify satisfactory completion of the re quired 
repairs or corrective action. For reinspections 
performed by deputy inspectors, an external 
inspection fee shall apply. 

Statutory Authority G.S. 95-69.11. 

.0304 APPEALS 

(a) Upon suspension of an inspection certificate, 
an authorized inspector shall affix to a prominent 
place on the boiler or pre ss ure ve ss el, a card with 
the following language: 

The — inspection — certificate — fef — this 

(boiler/pressure — ve ss el) — is — suspended 
indefinitely. 

Further — use — of this — (boiler/pressure 

vessel) — is — prohibited. Any — per s on 

operating this (boiler/pressure vessel) 
sbaH — be — subject — to — a — fine — of one 

thou s and dollars ($1 ,000) &r 

imprisonment for six months, or both. 

This — eafd — shaH — be — s igned — by — the 

Director of the Boiler and Pre ss ure 
Vessel Division. 

certificate 



(b) Upon revocation of the inspection 
and condemnation of the boiler or pressure ve ss el, 
an authorized inspector shall affix to a prominent 
place on the boiler or pressure vessel, a card 
bearing the following language: 

This (boiler/pressure ve s sel) is 

condemned. The certificate for this 

(boiler/pressure — vessel) — has — been 
permanently revoked. 

Further — ase — of thi s — (boiler/pressure 

vessel) — is — prohibited. Aay — person 

operating this (boiler/pressure vessel) 
s hall — be — subject — te — a — fine — ©f- — one 

thousand dollar s ($1,000) or 

imprisonment for six month s , or both. 

This — eafd — shaH — be — signed — by — the 

Director of the Boiler and — Pressure 

Vessel Division. 

(e) — The North Carolina serial number for a 

condemned — boiler — or pre s sure — vessel — shall — be 

s tamped by an authorized inspector a s follow s : 

XXXNCXXX. 

(a) If the owner or user believes that the 
recommendations of the inspector are not 
warranted, he may request a review by the 
Director within j_5 days of the inspection. The 



Director shall notify the owner or user of his 
decision in writing within 15 days of receipt of a 
request for a decision. 

(b) If the owner or user believes that the 
decision of the Director is not warranted he may 
file for a judicial hearing pursuant to G.S. 150B. 
The decision of the Director shall not be stayed 
pending a judicial hearing. 

(c) After verbal notification from the Director 
that a condition of imminent danger exists, the 
owner or user shall not operate the boiler or 
pressure vessel, however, the owner or user may 
file for a judicial hearing in accordance with 
Paragraph (b) of this Rule. 

Statutory Authority G.S. 95-69.11; 95-69.18. 

.0305 MENACE TO PUBLIC SAFETY 
NOTICE 

(a) The Director or his designee shall post a 
menace to public safety notice on the boiler or 
pressure vessel: 

(1) if the owner or user fails to request a 
reinspection within 30 days of an 
inspection during which time 
deficiencies were noted: 

(2) immediately upon verbal notification by 
the Director regarding an inspection 
whereby the inspector identified a 
condition of imminent danger; or 

(3) within 15 days after the Director 
renders a decision regarding an 
appealed decision. 

(b) The notice described in this rule shall be 
posted in a prominent place on the boiler or 
pressure vessel and in a prominent place in the 
establishment where the boiler or pressure vessel 
is being used so that it may be easily read by 
members of the public and employees. 

(c) The menace to public safety notice shall not 
be removed, rendered illegible or inaccessible, or 
otherwise obliterated except under the explicit 
a pproval of the Director. 

Statutory Authority G.S. 95-69. 11; 95-69. 18. 

v0305 .0306 VIOLATIONS 

(a) Any person or legal entity operating a boiler 
or pressure vessel: 

(1) without an inspection certificate; 

(2) after the inspection certificate has 
expired; 

(3) while the inspection certificate is 
suspended; 

(4) after the inspection certificate has been 



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October 14, 1994 



1091 



PROPOSED RULES 



revoked and the boiler or pressure 
vessel has been condemned; or 

(5) without the notice declaring the boiler 

or pressure vessel to be a menace to 
public safety, in the manner required by 
Rule s .0302(e) or .0303(c) 0305 , wh en 
s uch posting i s required by these Rule s ; 
et 
(5) (6) in excess of the maximum allowable 
working pressure as stated on the 
inspection certificate, or outside of the 
design pressure or temperature of the 
boiler or pressure vessel, shall be 
subject te-7 to action as described in this 
Rule. 
(b) Action to be taken by the Director shall 
include: 

(1) (a) injunctive proceedings instituted by 
the director Director on behalf of the 
commis s ioner Commissioner pursuant 
to G.S. 95-69.11; 

(2) (b) the criminal penalties prosecution 
outlined in pursuant to G.S. 95-69.18; 
or 

(3) (e) both injunctive proceedings pursuant 
to G.S. 95-69. 1 1 and criminal penalties 
prosecution per (6)(a) and (6)(b) of this 
Ru4er pursuant to G.S. 95-69.18. 

Statutory Authority G.S. 95-69. 11; 95-69.14. 

SECTION .0400 - GENERAL 
REQUIREMENTS 

.0401 DESIGN AND CONSTRUCTION 
STANDARDS 

(a) The design, construction, installation, 
alteration, inspection, stamping, repair, and 
operation of all boilers and pressure vessels except 
nonstandard boilers and pressure vessels and North 
Carolina "Specials" shall conform to these Rules 
and the American — Society — of- — Mechanical 
Engineers' Boiler and Pres s ure Vessel Code, 1986 
edition with addenda through winter, 19 8 7, ASME 
Code, 1992 edition, including subsequent 
amendments and editions, which is hereby adopted 
incorporated by reference. Paragraph s — A 33 

-32 



boilers and pressure vessels, shall conform to the 
requirements of the following sections of the 
National Board Inspection Code, 1992 edition, 
including subsequent amendments and editions, 
which are hereby incorporated by reference: 

(1) Chapter III, Repairs and Alterations to 
Boilers and Pressure Vessels by 
Welding; and 

(2) Appendices A and D VR C-R and C; 
VR. 

Thi s Paragraph is adopted in accordance with G.S. 
150B 1 4 (b). 

(c) The rules of this Chapter shall control when 
any conflict is found to exist between these Rules 
and the ASME Code or the National Board Inspec- 
tion Code exists . 

(d) Copie s of these codes are available for 
public inspection in the office of the division- 
Copie s of the ASME Code can be purchased from 
the American Society of Mechanical Engineers, 
United Engineering Center, P.O. Box 3199, Grand 
Central Station, New York, New York 10163 for 
two — thousand six — hundred — and — ninety — dollar s 
($2,690). Copies of the National Board In s pection 
Code can be purchased from National Board of 
Boiler — and — Pres s ure — Vessel — Inspectors, — 1955 

Crupper Avenue, — Columbu s , — Ohio 4 3229 for 

twenty — dollars — ($20.00). Welded repairs and 
alterations may only be made by an individual or 
organization in possession of a valid certificate of 
authorization for use of the National Board "R" 
symbol stamp or an ASME Code symbol stamp. 

(e) The edition of the ASME Code, as adopted, 
in effect when the boiler or pressure vessel is 
contracted for or installed shall serve as the design 
criteria for the boiler proper or pressure vessel 
proper, except for boilers and pressure vessels 
covered under ASME Section HI (Nuclear). — The 
ASME Code edition adopted after the boiler or 
pre s sure vessel i s contracted for or installed does 
not apply to the de s ign criteria the boiler proper or 
pressure vessel proper. Repairs of safety valves or 
safety relief valves shall be made by an individual 
or organization in possession of a valid certificate 
of authorization for use of the National Board 
"VR" symbol stamp. 

(f) The design criteria for the boiler proper and 



A 37, A 4 0, A 4 9, A 53, and A 61 of the ASME pressure vessel proper in a nuclear energy s y s tem 



Section — h — arc hereby — made mandatory. Thi s 

Paragraph — i s adopted — in accordance — with — G.S. 
150B 1 4 (c). 

(b) The following s ections of the National Board 
In s pection Code, 1987 edition arc hereby adopted 
by reference and apply to all boilers and pre ss ure 
ves s els. — as follow s : Repairs and alterations to 



covered under the s cope of Section HI of the 
ASME Code, as adopted, s hall be determined in 
the manner therein provided. 

(g) The ASME Code and the National Board 
Inspection Code, as adopted, and these Rules shall 
govern all aspect s of boilers and pressure vessels, 
except for the design criteria for the boiler proper 



1092 



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October 14, 1994 



PROPOSED RULES 



or pressure vessel proper, upon adoption by the 
division, without regard to the date that the boiler 
or pressure vessel was contracted for or installed. 

Statutory Authority G.S. 95-69.11; 95-69.13; 95- 
69. 14. 



.0402 NORTH CAROLINA STAMPING AND 
REGISTRATION 

(a) Boilers and pressure vessels shall be regis- 
tered with the National Board and shall bear the 
National Board stamping as follows : 

(1) Power boilers installed after November 
2, 1946ri 

(2) heating boilers (except cast iron boilers) 
installed after January 1 , 1 9767J and 

(3) pressure vessels installed after January 
1, 1979. , shall bear the National Board 
stamping and the manufacturer' s regis 
tercd national board number. 

This requirement s hall — not apply to 
ASME Code con s tructed pressure ves 
scls which were operated by an owner 
in another jurisdiction prior to January 
1, 1979, and are transferred for opera 
tion at a location in thi s State, so long 
as there has been and i s no change in 
the owner s hip vessel. 
{fe) — A copy of the manufacturer's data report, 
signed by the manufacturer's representative and a 
national board commi ss ioned — in s pector, shall be 
registered with the national board before any boiler 
or pressure ves s el that is stamped national board i s 
installed. 

fflfb) Boilers or pressure vessels shall be exempt 
from the requirements of Paragraph (a) of this 
Rule when: 

(4} The owner or user provides to the 

director reliable documentation — from 
the — manufacturer, — including — a — third 
party inspection report, that the boiler 
or pressure vessel was designed and 
constructed to — specifications and — Fe- 
quircments equivalent to those enforced 
by the National Board of Boiler and 
Pressure Ve ss el Inspectors at the time 
construction of the boiler or pressure 
ve ss el, and; 

{2-) The director determines that the design 

and construction requirements of the 
National Board of Boiler and Pre s sure 
Vessel Inspectors in effect at the time 
construction were adhered to and that 
based upon 3uch criteria and informa 
tion that is available, — the boiler or 



pressure vessel complies with all other 
provi s ion s of the Uniform Boiler and 
Pressure Vessel of North Carolina and 
the s e — Rules. Boilers and pressure 
vessels may be exempted from the 
requirement for National Board regis- 
tration. To request an exemption, the 
owner or user shall submit a letter of 
request to the Director enclosing with 
the letter a copy of the original manufa- 
cturer's data report and all R-l reports 
of Welded Repair or Alteration for all 
repairs and alterations which have been 
made to the boiler or pressure vessel 
for which the exemption is being re- 
quested. The information which is 
submitted will be reviewed by the 
Director. The owner or user will be 
advised of the Director's decision with- 
in K) working days with regard to the 
approval or disapproval of the request. 

(c) Electric boilers shall bear the Underwriters' 
Laboratories label (in in addition to any other 
stamping requirements) requirements . 

(d) The owner or user may, upon request, of the 
inspector making an inspection, be required to 
provide a manufacturer's data report for the boiler 
or pressure vessel . 

(d){e) When a new boiler or pressure vessel is 
installed, or when an existing installation receives 
its first certificate inspection, an authorized inspec- 
tor shall apply a metal tag embossed with the 
North Carolina serial number (e.g., NC000) to the 
boiler or pressure vessel on or adjacent to the 
manufacturer's nameplate or stamping . If the 
boiler or pressure vessel is constructed of material 
of s uch thickness that it s hould not be s tamped, a 
metal tag, furni s hed by the division and bearing 
the serial number, shall be attached. — Otherwise, If 
the boiler or pressure vessel is constructed of 
materials having adequate thickness to allow 
stamping, the serial number s hall should also be 
stamped onto the boiler or pressure vessel. 

{e)(f) The owner or user shall keep the all 
required stamping exposed at all times unless a 
record is kept of its location clearly marked re- 
movable cover is installed so that it may be readily 
uncovered accessible at any time. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0403 MAXIMUM ALLOWABLE WORKING 
PRESSURE 

(a) An authorized inspector may lower , to a s afe 
level, the maximum allowable working pressure of 



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1093 



PROPOSED RULES 



any boiler or pressure vessel because of age, 
condition or the condition of the boiler or pressure 
vessel, or the circumstances under which it is 
operated, so warrant operated . 

(b) The authorized inspector , in lowering the 
maximum allowable working pre ss ure, shall raise 
the factor of safety to reflect the new pressure 
level and shall justify the reduction in the maxi- 
mum allowable working pressure and note the new 



maximum allowable working pressure and factor 
of safety in on the inspection report. 

(c) A person shall not operate any boiler or 
pressure vessel No boiler or pressure vessel may 
be operated in excess of the maximum allowable 
working pressure as stated on the inspection 
certificate or outside of the temperature ranges for 
which the boiler or pressure vessel was designed . 

Statutory Authority G.S. 95-69.11; 95-69.14. 
.0404 CONTROLS AND SAFETY DEVICES 

All boilers and pressure vessels shall be equipped with all suitable controls and safety devices required for 
safe operation of the equipment. Controls and safety devices shown in Table-0404 in this Rule shall be 
considered minimum requirements for the various types of boilers and pressure vessels listed. All devices 
required herein and shown m Table-0404 shall be suitable for the maximum allowable operating pressure and 
temperature of the boiler or pressure vessel on which they are installed. Electrical wiring and connections 
shall meet the requirements of the current edition of the State Building Code applicable at the time of 
installation. The design, construction, installation, and operational requirements for controls and safety 
devices shall be as required in Rules .0405 through .0412 of this Section. 

TABLE-0404 



REQUIRED DEVICE AND 
REFERENCED RULE 


POWER 
BOILER 


STEAM 

HEATING 

BOILER 


HOT 

WATER 

HEATING 

BOILER 


HOT 
WATER 
SUPPLY 
BOILER 


PRESSURE 
VESSEL 


Safety Valve(s) 
.0405 


X 


X 


X 


X 


X 


Hieh Limit Control 
.0406 


x 


X 


X 


X 


X 


Pressure Gauge 
.0407 


X 


X 


X 




X 


Steam S\-phon 
(steam boilers only) 
.0407 


X 


X 








Water Column & Gauge Glass 

(steam boilers onlv) 

.0408 


X 


X 








Low-Water Fuel Cutofffs) 
(if input > 400.000 Btu) 
.0409 


X 


X 


X 


X 




Temperature Gauge 
.0410 






X 


X 




Bottom Blowoff Valve(s) 

.041 1 


X 


X 








Drain Valve(s) 
.0411 


X 


X 


X 


X 


X 


Make-up Water Stop Valve(s) 
.0411 


X 


X 


X 


X 





1094 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 





Back-flow preventer 
.0411 


X 


X 


X 


X 




Expansion Tank 
.0412 






X 


X 




Flame Failure Control 
.0420 


X 


X 


X 


X 





Statutory Authority G.S. 95-69.11; 95-69. 14. 



,0404 .0405 SAFETY VALVES 

(a) Boilers and pressure vessels shall be protect- 
ed from overpressurization by a safety valve. All 
safety valves installed on any boiler, pressure 
vessel, or nuclear energy system shall be con- 
structed and stamped in accordance with the 
ASME Code. 

(b) All safety valves and safety relief valvoo 
shall be stamped and capacity certified by the 
manufacturer indicating compliance with the 
National Board of Boil e r and Pr e ssur e Vess e l 
Inspectors . The stamping shall include the set 
pressure (that pressure at which the valve is set to 
open) and the relieving capacity (the rate of flow). 

(c) Any r e pair organization, manufactur e r or 
u se r who performs r e pairs on saf e ty valv e s or 
s af e ty r e lief valve s s hall hold a valid certificat e of 
authorization and VR symbol repair stamp issu e d 
by th e National Board of Boil e r and Pressur e 
V e ss e l Insp e ctors. Power boilers with over 500 
square feet of heating surface and electrically fired 
boilers having an input in excess of 1 100 kW shall 
be provided with a minimum of two safety valves. 

(d) Safety valves for heating boilers shall have 
a seat diameter of not less than 1/2 inch, nor more 
than 4 f/2 inches. 

(e) Safety valves shall have a set pressure and 
relieving capacity in accordance with the ASME 
Code requirements for the type device on which 
the safety valve is installed. The set pressure for 
the safety valve shall not be greater than the 
maximum allowable working pressure of the boiler 
or pressure vessel. The relieving capacity shall 
not be less than the minimum required relieving 
capacity indicated on the manufacturer's name 
plate or stamping, or as otherwise required by the 
ASME Code. Safety valves installed on potable 
water heaters shall be of the combination tempera- 
ture and pressure relieving type. Hydropneumatio 
storage tanks s upplying potable wat e r at ambi e nt 
t e mp e ratur e and containing a oushion of air shall 
b e protect e d with a liquid rated safety — valv e 
installed below th e water lin e and rated in gallons 
per minut e with a oapaoity of not loss than th e inl e t 



s upply pump. Alternatively, when th e tank is 

install e d so that th e r e l e as e of wat e r as a r e sult of 
v e ss e l ruptur e will not cr e at e an additional hazard, 
suoh a s e leotrioal shortag e , th e tank may be pro 
teoted with a safety valv e installed at th e top of th e 
v e ssel above the wat e r line, so long as the safety 
valve is e ith e r: 

(4) an air rat e d s af e ty valv e with a oapaoity 

of not l e ss than 1 standard oubio foot 
p e r minut e (SCFM) for e aoh gallon p e r 
minut e of input from th e wat e r supply 
pump; or 

(3) a safety valv e with a capacity of not 

l e s s than 3,000 Btu/hr for e aoh gallon 
p e r minut e of wat e r input. 

(f) All safety valves installed on power boilers 
shall be installed on top of the boiler, or ]n the 
case of water tube boilers or on tog of the u pper 
drum, with the spindle in the vertical position. All 
safety valves installed on heating boilers shall be 
on top of the boiler or on an opening at the highest 
practicable part of the side of the boiler, but in no 
case shall the safety valve be installed below the 
normal operating level for a steam boiler. Safety 
valves installed on hot water heating boilers, hot 
water supply boilers, and steam heating boilers 
shall be installed with the spindles mounted in the 
vertical position. Safety valves for potable water 
heaters may be installed with the spindles mounted 
in either the vertical or horizontal position. 

(g) The distance between the safety valve outlet 
nozzle on the boiler and the safety valve inlet shall 
be kept to a minimum consistent with the size of 
the safety valve and the pipe sizes required. In no 
case shall any valves or stops be installed in the 
inlet piping to the safety valve or in the discharge 
piping from the safety valve. The boiler outlet and 
the piping between the boiler outlet and the safety 
valve shall have a cross sectional area of not less 
than the cross sectional area of the safety valve 
inlet. 

(h) Discharge piping from the safety valve outlet 
shall be the same size, or larger, than the outlet 
pipe connection on the safety valve and shall be 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1095 



PROPOSED RULES 



extended full size to a safe location. A safe 
location shall be interpreted to mean a location 
within six inches of the finished floor of the 
mechanical room, to a location outside the building 
terminating a safe distance above the building roof 
or to a location outside the building within six 
inches above the finished grade. When safety 
valve discharge piping is routed vertically, piped 
drainage shall be provided by the use of drip pan 
elbows installed on the outlet of each safety valve 
served, 

(i) Multiple safety valves may be piped to the 
point of discharge using a common discharge 
header pipe. The header pipe size shall have a 
diameter sufficient to provide an equivalent cross- 
sectional area equal to the sum of the cross-sec- 
tional areas of the safety valve outlets to which it 
is connected. 

(j) Safety valves on pressure vessels may be 
installed with the spindle in the vertical or horizon- 
tal position. The safety valve inlet, discharge 
piping, and the requirement for piping the dis- 
charge to a safe location shall be the same as noted 
for boilers. The requirement for discharge piping 
is optional for pressure vessels used to store 
compressed air, inert gasses, water, or other fluids 
no more hazardous than water. 

(k) Safety valves for direct fired pressure vessels 
and for those used as air compressor storage tanks 
shall be installed directly on the pressure vessel 
with no intervening valves. Safety valves for all 
other pressure vessels may be installed directly on 
the pressure vessel or in the piping system, except 
as modified in this Rule. A stop valve may be 
i nstalled between a pressure vessel and the safety 
valve if one of the following is satisfied: 

(1) the stop valve is normally locked in the 
open position, and may only be closed 
when there is a fuU time attendant 
stationed at the stop valve when it is in 
the closed position for testing purposes; 

or 

(2) isolating the safety valve from the 
pressure vessel by closing the stop 
valve also isolates the pressure vessel 
from the source of pressure. 

(!) Safety valves shall be sealed to prevent the 
valve from being taken apart without breaking the 
seal. Safety valves for boilers and pressure vessels 
containing air, water, or steam, shall be provided 
with a test lever or pull test ring which may be 
used to test the operation of the valve. Safety 
valves which are required to be provided with a 
test lever or pull ring shall be readily accessible 
for testing from the work platform or other means. 



such as a pull chain, shall be provided so that the 
safety valve can be tested from the work platform. 

(m) When a hot water supply boiler or storage 
vessel is heated indirectly by steam or hot water in 
a coil or pipe, the safety valve capacity shall be 
determined by the heating surface available for 
heat transfer, and the safety valve shall not be less 
than one inch diameter. 

(n) fd)A person shall not: 

(1) attempt to remove, tamper or perform 
any work on any safety appliance while 
the boiler, pressure vessel, or nuclear 
energy system is in operation, except as 
permitted by the ASME or the National 
Board Inspection Code; 

(2) load a safety valve in any manner to 
maintain a working pressure in excess 
of the maximum allowable working 
pressure as stated on the inspection 
certificate; 

(3) operate any boiler, pressure vessel, or 
nuclear energy system without the 
safety appliances as described in these 
Rules, the ASME Code, and the Na- 
tional Board Inspection Code, or 

(4) use a safety valve required by these 
Rules as an operating pressure control. 

(o) For a pressure vessel operating in a system 
of such design that the maximum allowable work- 
ing pressure cannot be exceeded, such as when the 
source of pressure is limited to a water column, 
the Director may waive the requirement for instal- 
lation of a safety valve. 

(p) Safety valve piping shall be supported 
sufficiently so that the piping is supported with no 
additional force being applied to the safety valve. 

(q) Hydropneumatic storage tanks shall be 
provided with a safety valve rated for liquid, 
installed below the water line, and rated in gallons 
per minute commensurate with the total output of 
the supplying pumps. Alternatively, for those 
hydropneumatic storage tanks installed such that 
the immediate release of water as a result of vessel 
rupture will not create an additional hazard, a 
safety relief valve of not less than 3/4" NPS may 
be installed at the top of the tank. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0406 ^407fflGH PRESSURE OR 

TEMPERATURE LEVITT CONTROL 

(a) Each automatically fired boiler or pres s ure 
ve ss el, in addition to the operating control for 
normal operation, s hall have a high limit pressure 
or temperature actuated combu s tion control, as 



1096 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



applicable, that will cut off th e fuel s upply. Each 
automatically fired boiler or pressure vessel shall 
be protected from overpressurization by two 
pressure or temperature operated controls which 
monitor the u pper pressure or temperature of the 
water, steam, or other fluid in the boiler or pres- 
sure vessel . At least one of the controls shall be 
properly wired to interrupt the fuel supp ly to the 
burner and stop burner operation, or for electric 
boilers to interrupt the electrical supply to the 
heating elements or electrodes, before the maxi- 
mum pressure or temperature is exceeded. One of 
the controls may be used as a normal operating 
control. 

(b) In a multiple boiler or pressure vessel 
installation, where the pressure or temperature 
actuated operating control may be installed in a 
header or other point common to all boilers and 
pressure vessels in the installation, and can be 
isolated from any of the boilers or pressure vessels 
in the installation, the owner or user shall equip 
each boiler or pressure vessel with at least one 
high-limit control. 

(c) For boilers installed after January L, 1995, 
and for all boilers after January J_, 2000, the high 
limit control shall be equipped with a manual reset 
which shall prevent the boiler from being fired 
after the maximum temperature or pressure has 
been reached until the operator resets the switch 
manually. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0407 PRESSURE GAUGES 

(a) Boilers and pressure vessels, other than 
potable water heaters, shall be provided with a 
pressure indicating gauge which is visible to the 
operator on the floor or normal work platform . 

(b) Pressure gauges shall have a pressure range 
of not less than one and one half times the operat- 
ing pressure, nor more than four times the operat- 
ing pressure, except that steam heating boilers 
shall have an upper limit of not less than 30 psi 
nor more than 60 psi. and a dial travel of three 
inches between psi and 30 psi. 

(c) Hot water storage vessels and expansion 
tanks in boiler systems need not be provided with 
a pressure gauge in addition to the gauge supplied 
on the boiler. 

(d) Steam boilers shall be provided with a 
syphon or equivalent which will provide a water 
seal and protect the gauge from being damaged by 
the steam. 

£e) Pressure vessels, other than those used as air 
compressor receiver tanks, may have a remotely 



located pressure indicating device or a system 
pressure monitoring device in lieu of a pressure 
gauge connected directly to the pressure vessel. 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 

.0408 GAUGE GLASSES AND WATER 
COLUMNS 

(a) Steam boilers, except for forced flow steam 
boilers and forced flow water boilers requiring 
forced circulation to prevent overheating of the 
tubes, shall be provided with a visible gauge glass 
which will allow the operator to observe the water 
level of the boiler. Boilers operating in excess of 
400 psi shall have two gauge glasses. Two inde- 
pendent remote level indicators may be used in 
lieu of one of the gauge glasses for boilers operat- 
ing in excess of 900 psi. Gauge glasses and 
remote level indicators must be visible to the 
operator while reading the pressure at the boiler. 

(b) Gauge glasses shall be mounted directly on 
the boiler or on a water column. Gauge glasses 
shall be mounted so that the lowest visible part of 
the gauge glass is above the lowest permissible 
water level by at least two inches for power boilers 
and one inch for steam heating boilers. Gauge 
glasses may be installed with stop cocks or valves 
to allow for gauge glass replacement during boiler 
operation. The connections from the boiler shall 
be not less than 3/4 inch nominal pipe size up to 
and including the isolation valves, and not less 
than 1/2 inch outside diameter tubing from the 
isolation valve to the gauge glass. 

(c) Gauge glasses shall be provided with a drain 
valve or cock and discharge outlet at the bottom- 
most connection of not less than 1/4 inch diameter. 
The discharge outlet shall be piped to a safe 
location to prevent injury to the operator while 
blowing down the gauge glass. 

£d) Water columns, chambers which moderate 
fluctuations in water elevations for determining the 
operating water level in a boiler, when used, shall 
be designed, constructed, and stamped as required 
by the ASME code. The piping connections to the 
boiler shall be not less than \ inch nominal pipe 
size for power boilers or 3/4 inch nominal pipe 
size for heating boilers. Water columns shall have 
a drain valve and discharge outlet of not less than 
3/4 inch nominal pipe size. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0409 t044€AUTOMATIC LOW- WATER 

FUEL CUTOFFANDWATER-FEEDING 
DEVICE 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1097 



PROPOSED RULES 



(a) Each automatically fired steam or vapor 
system boiler^ and each hot water heating boiler or 
hot water supply boiler having a minimum safety 
valve relieving capacity greater than 400,000 
Btu/hr, shall be equipped with an automatic 
low-water fuel cutoff so located as to automatically 
cut off the fuel supply and stop the operation of 
the burner before when the surface of the water 
falls to the lowest safe water line. For electric 
boilers, the low-water fuel cutoff shall cut off the 
electrical supply to the electric elements or elec- 
trodes. The lowest safe water line shall be that 
level identified by the manufacturer which indi- 
cates the lowest safe water level for safe operation 
of the boiler. If a water feeding device is in 
s talled, it shall be so constructed that the water 
inlet valves — cannot feed water into the boiler 
through the float chamber and 3 located as to 
supply requisite fecdwater. Low water fuel cutoff 
devices embodying a float and float bowl shall be 
installed so that the boiler feedwater or makeup 
water can not be introduced through the float bowl 
of the device chamber . The lowest safe water line 
s hall be not lower than the lowest vi s ible part of 
the water glass. 

(b) Each hot water heating boiler s hall be fitted 
with a low water cutoff control that i s built for a 
safe working pressure equal to that of the boiler- 
Steam and vapor boilers fired by the combustion of 
fuels and installed after January t, 1995 and all 
steam and vapor boilers fired by the combustion of 
fuels after January L, 2000 shall be protected by 
two low-water fuel cutoffs, one of which may also 
be used to regulate the normal water level. 

(c) Such fuel or feedwater control device may 
The low-water fuel cutoff shall be attached directly 
to a the boiler or to the tapped openings provided 
for attaching a water glass directly to a boiler, 
provided that for low pressure boilers s uch water 
column, connect i ons Piping from the boiler are 
shall be nonferrous tees — or Y' s not less than 
one-half inch, pipe size, inch nominal pipe size. 
between the boiler and the water glass, so that the 
water glass is attached directly and a s close as 
possible to the boiler, the straightaway topping of 
the tec or Y to take the water gla ss fittings, the 
s ide outlet of the tec or Y to take the fuel cutoff or 
water feeding device. The ends of all nipples shall 
be reamed to full-size inside diameter. The low- 



and float bowl shall have a vertical straightaway 
valve drain pipe at the lowest point in the 
water-equalizing pipe connections by which the 
bowl and the equalizing pipe can be flushed and 
the device tested. 

(e) A coil type boiler or a watertube boiler witb- 
heat input greater than 4 00,000 BTU/hour requir- 
ing forced circulation to prevent overheating of the 
coils or tubes s hall may have a flow-sensing device 
installed in the outlet piping at or near the boiler 
proper , in lieu of the a low-water fuel cutoff 
required in thi s Rule , to automatically cut off the 
fuel supply when the circulation of flow is inter- 
rupted. 

(f) For boilers installed after January 1_, 1995, 
and for all boilers after January 1 . 2000. for which 
a low-water fuel cutoff is required by these Rules. 
at least one of these devices shall be equipped with 
a manual reset which shall prevent the boiler from 
being fired after a low-water condition until the 
operator resets the switch manually. 

(g) Automatically fired boilers installed after 
January J^ 1995 and all automatically fired boilers 
after January 1^ 2000 shall be provided with a 
system to automatically maintain a constant water 
level so that the water level can not fall below the 
lowest safe water line. 

Statutory Authority G.S. 95-69.14. 

.0410 vMHTEMPERATURE GAUGES 

(a) — The owner or user shall pipe boiler blow 
down to a safe location. 

<%) Boilers di s charging blowdown that is a 

hazard to life or property or that enters a sewer 
system shall be furnished with equipment conform 
ing to the National Board publication "Rccom 
mended Rules for Boiler Blowoff Equipment," 
1973 edition, which is hereby adopted by refer 
encc. 

fe) — Copies of "Recommended Rules for Boiler 
Blowoff — Equipment" — are — available — fef — public 
inspection in the offices of the division may be 
obtained at a cost of two dollar s ($2.00) per copy 
from: 

The National Board of Boiler and 

Pressure Vessel In s pectors 

1055 Crupper Avenue 

Columbus, Ohio 43229. 



(d) Hose bib valves may be installed on heating 
boilers in addition to the required blowoff valve. 



water fuel cutoff installed in a water boiler system 

may be installed anywhere in the system so long as 

there is no isolation valve installed between the fe) — The discharge of s afety valve, blowoff pipes 

device and the boiler. 

(d) Designs For steam and vapor system boilers, 
low-water fuel cutoff designs embodying a float 



and other outlets s hall be located s o as to prevent 
injury to personnel. 
Hot water heating boilers, hot water supply 



1098 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



boilers, and potable water heaters shall be provid- 
ed with a temperature gauge, installed as close as 
practicable to the hot water outlet, which will 
indicate the temperature in degrees Fahrenheit. 
The indicating device shall have a range of ap- 
proximately 2 times the intended operating temper- 
ature but not less than i J_/2 times the intended 
operating temperature, nor more than 4 times the 
intended operating temperature. 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 

.0411 VALVES, DRAINS, AND BOTTOM 
BLOWOFFS 

(a) Power boilers operating in excess of 100 psi 
must be provided with two stop valves for boiler 
blowoff and drain outlets. Any boiler having a 



common steam connection with another boiler, and 
having a manhole opening, shall be provided with 
two steam outlet stop valves with a drain or vent 
of not less than 3/4" NPS between the two stop 
valves. 

fb) All boilers, except for coil-type water tube 
boilers, shall be provided with a drain outlet and 
stop valve of not less than 3/4" NPS at the lowest 
water containing space, except that if the boiler is 
provided with a blowoff outlet at the lowest water 
containing space, an additional drain outlet is not 
required. 

(c) Power boilers shall be provided with a 
bottom blowoff outlet and valve of not less than 1 " 
NPS nor more than 2 1/2" NPS, except as modi- 
fied below: 

(1) Miniature power boilers shall have a 

blowoff outlet of not less than 3/4" 

NPS. 
£2) Electric power boilers not greater than 

200kW shall have a blowoff outlet of 

not Jess than 3/4" NPS. 

(3) Power boilers having a heating surface 
not greater than 100 square feet shall 
have a blowoff outlet of riot less than 
3/4" NPS. 

(4) All other power boilers shall have a 
blowoff outlet of not less than _T NPS. 

(d) Steam heating boilers shall be provided with 
a bottom blowoff outlet and valve of not less than 
Ul NPS (nominal pipe size) nor more than 2 1/2" 
NPS. except as modified below: 

(1) Steam heating boilers having a mini- 
mum safety valve relieving capacity not 
exceeding 500 lbs steam/hr shall have a 
blowoff outlet of not less than 3/4" 
NPS. 

(2) Steam heating boilers having a mini- 



(3} 



14] 



15} 



mum safety valve relieving capacity 
greater than 1205 lbs steam/hr but not 
greater than 2500 lbs steam/hr shall 
have a blowoff outlet of not less than J_ 
1/4" NPS. 

Steam heatin g boilers having a mini- 
mum safety valve relieving capacity 
greater than 2500 lbs steam/hr but not 
greater than 6000 lbs steam/hr shall 
have a blowoff outlet of not less than J_ 
1/2" NPS. 

Steam heating boilers having a mini- 
mum safety valve relieving capacity 
greater than 6000 lbs steam/hr shall 
have a blowoff outlet of not less than 
2" NPS. 

All other steam heating boilers shall 
have a blowoff outlet of not less than 
1" NPS. 



(e) All blowoff from power boilers should 
discharge into a blowdown tank suitable for sepa- 
rating steam and water. Steam should be vented to 
the atmosphere or used in an energy recovery 
system. Water overflow should be discharged into 
a properly vented and a pproved waste water 
collection system, and as a minimum, the boiler 
blowoff shall be piped to prevent injury. 

(f) Valves for power boilers shall be designed 
and constructed in accordance with the require- 
ments of ASME Section L and shall be stamped or 
embossed with the pressure/temperature rating of 
the valve. 

fg) Valves for heating boilers shall be suitable 
for the operating pressure and temperature of the 
boiler. 

fh) Pressure reducing valves shall be installed in 
the makeup water line where city pressure or 
water pressure is more than 75 percent of the 
maximum allowable working pressure of the boiler 
or pressure vessel. 

£i] A shutoff valve shall be provided in the 
makeup water line next to each boiler, or for a 
series of boilers having a single water makeup 
line, the valve shall be installed next to the boiler 
piping system. If the water-containing capacity of 
the boiler exceeds 120 gallons, a check valve or 
back-flow preventer shall be installed on the 
source side of the shutoff valve. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

^4W .0412 EXPANSION TANKS 

(a) Provisions shall be made for thermal expan- 
sion and contraction of hot water piping systems. 
Expan s ion tanks When expansion tanks are used 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1099 



PROPOSED RULES 



they shall be constructed and stamped in accor- 
dance with the requirements of these Rules for 
pressure vessels, unless exempted due to the vessel 
size or operating limits. ASME Code, Section 
VIII, Divi s ion 1, and registered with the national 
board when any of the following limitations are 
exceeded : 

<4-j water temperature of 200°F; 

{3} s afety relief valve s etting of 30 psig; or 

0) five cubic feet nominal water containing 

capacity in the expansion or cushion 

BHfiK . 

(b) For a closed type system the expansion tank 
shall be not less than that determined as follows: 
Vt = r(0.00041T - 0.0466) Vsl/KPa/Pf) 
- (Pa/Po)l where: 

Vt ff. minimum volume of tank(s), gal 
Vs ff, volume of system, not including 
tanks, gal 

T fi average operating temperature, 
deg F 

Pa _^_ atmospheric pressure, psi 
Pf =_ fill pressure, psi 
Po jf. maximum operating pressure, psi 

Statutory Authority G.S. 95-69.11; 95-69.14. 

t0409 .0413 CLEARANCE 

(a) Wh e n boilers ar e r e plac e d or n e w boil e rs ar e 
install e d in e ith e r e xisting or new buildings, a 
minimum height of thr e e f e et s hall b e provided 
b e tween the top of th e boil e r prop e r and th e 
c e iling and at least thr ee f ee t b e tw e en all sides of 
th e boil e r and adjac e nt walls or oth e r s truorur es . 
All boilers and pressure vessels shall be located so 
that adequate space is provided for proper opera- 
tion, for the inspection of all surfaces, tubes, 
waterwalls. economizers, piping, valves and other 
equipment, and for maintenance and repair, includ- 
ing replacement of tubes. Boiler clearances shall 
remain free of aH items, including temporarily 
stored items, other than boiler piping and trim. 
Boiler piping and trim shall not impede access to 
the boiler. 

(b) Boil e r s having manhol e s s hall hav e at l e ast 
fiv e f e et clearance and pre ss ur e ve s sel s o hall have 
at — least — twe — feet — clearance — from — th e manhol e 
op e ning and any wall, ceiling or piping or oth e r 
obstruction that will prevent a p e rson from e nt e r 
ing th e boil e r or v e ss e l. Adequate clearance for 
boilers and pressure vessels shall not be less than 
the following: 

(1) Three feet of clearance shall be provid- 
ed between the boiler or pressure vessel 
on all service sides, and clearances as 



recommended by the manufacturer on 
all other sides. Service side shall be 
interpreted as any side, including the 
top, of a boiler or pressure vessel on 
which clearance is necessary to access 
operating controls, safety devices, drain 
and blowoff valves, or inspection open- 
ings. 
(2) Cabinet mounted boilers, such as those 
used primarily for process or cooking, 
and having a maximum input of 
400,000 Btu/hr need only be provided 
with the clearances recommended by 
the manufacturer. 
(c) All boilers and pressure vessels shall be 30 
located that adequate s pace will be provided for 
the — proper — operation — of boilers — and — pressure 
ves s els and their appurtenance s , for the inspection 
of all s urfaces, tubes, waterwalls, economizers, 
piping, valve s and other equipment, and for the 
necessary maintenance and repair and replacement 
ef- — tubes. As an alternative to this Rule, 
replacement boilers and pressure vessels in 
existing buildings may meet the requirements in 
effect at the time that the original boiler or 
pressure vessel was installed. 

Statutory Authority G.S. 95-69.11; 95-69.14. 



.0414 GAS-FIRED JACKETED STEAM 
KETTLE 

(a) The director shall issue inspection certificates 
for gas fired jacketed steam kettle s constructed 
pursuant to the ASME Boiler and Pressure Vessel 
Code, — Section — VIII, — provided — the — following 
additional requirements of thi s Section arc mot. 

fb) — Welded joints in contact with products of 
combustion s hall be of Type No. — 1 — of Table 
UW 12, Section VIII. 

fe) — When parts subjected to pres s ure arc made 
of carbon s teel material, the minimum thickne ss 
s hall be one fourth inch. — The minimum thickness 
of stainless steel or nonfcrrous pressure parts s hall 
be a s s pecified in the applicable part of Subsection 
€7 

(d) When — m — contact — with — products — ef 

combustion, — carbon — steel — material — shall — be of 
pressure ve ss el quality. — Austcnitic stainless steel 
parts — shall — be — of either — extra low — carbon — ef 
stabilized grades. 

{e) — Structural grade carbon s teel shall not b e 
used for any pressure part. 

(f) The operating pre ss ure of the jacket shall not 
exceed 50 p s ig. 

(g) Ve s sel s con s tructed under thi s Rule shall not 



1100 



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NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



be marked with the UM s ymbol regardless of 
volume, 

(h) No steam or waters shall be withdrawn from 
the jacket for use externally to the vessel. 

(i) The capacity of the s afety valve in pounds of 
steam per hour shall be at lea s t equal to the BTL) 
rating of the burner divided by 1,000. 

(j) The jacket shall be furnished with the follow 
ing minimum appurtenances and control s : 

{-}-) a pressure gauge; 

(3) a water gauge glas s ; 

^ a — separate connection, — fitted — with — & 

check valve and stop valve, for adding 
water to the jacket (the water may be 
added while the vessel is not under 
pressure); 

(4) an automatic gas valve controlled by 

pres s ure or temperature to maintain the 
steam pressure in the jacket below the 
s afety valve setting; 

f§) a low water cutoff that will cut off the 

fuel to the burner if the water in the 
jacket drops below the lowest pcrmissi 
ble water level as establi s hed by the 
manufacturer; and 

{£) a s afety pilot control that will cut off 

the fuel to both the main burner and the 
pilot burner in case of pilot flame fail 
urc 
Gas -fired jacketed steam kettles having a steam 
space of such size that it is subject to these rules 
shall be equipped with the operating controls and 
safety devices required for boilers. 

Statutory Authority G.S. 95-69.11; 95-69.14. 



.0415 ^495AGE LIMIT FOR CERTAIN 

BOILERS AND PRESSURE VESSELS 

(a) A boiler or pressure vessel shall not be 
operated for longer than 20 years from the date of 
its installation if it: Except as provided jn Para- 
graph (b) of this Rule, a boiler or pressure vessel 
shall not be operated for longer than 20 years from 
the date of its installation if it is not constructed 
according to the ASME Code and has riveted 
longitudinal lap joints. 



pres s ure as he may s et. The Director may autho- 



w- 



m- 



-is — net — con s tructed — according — te — the 
ASME Code; 
has riveted, longitudinal lap joints; and 

i$) has been operated for the major part of 

its operating life in excess of 50 p s ig. 

(b) A boiler or pressure vessel meeting the 

criteria listed in (a) of this Rule may be operated 

for more than 20 years from the date of in s tallation 

upon the director's approval and at s uch working 



rize operation of a boiler or pressure vessel meet- 
ing the criteria listed jn Paragraph (a) of this Rule 
after the owner or user satisfactorily completes 
such additional examinations, tests, and engineer- 
ing evaluations as may be deemed necessary by the 
Director, to demonstrate that the boiler or pressure 
vessel is suitable for operation at the maximum 
allowable working pressure for the term of the 
inspection certificate. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0416 .04©eREINSTALLATION OF 
CERTAIN BOILERS AND 
PRESSURE VESSELS 

A boiler or pressure vessel that; 



i s not constructed pursuant to the ASME 

Code; 

i s not registered with the national board; 

ftfto 

-te 



m- 



&- 



is pre 
Ste* 



scntly 



operating at a location in 
haH — net — be — removed — &ftd- 



fe- 

installcd at any location in this State, if 
the reinstallation i s accompanied by a 
change of ownership of the boiler or 
pressure ve ss el. 

(a) Except as provided in Paragraph (b) of this 
Rule, a boiler or pressure vessel that is not con- 
structed pursuant to the ASME Code and is operat- 
ing at a location in this State, shall not be removed 
and reinstalled at any location in this State. 

(b) The Director may authorize operation of a 
boiler or pressure vessel meeting the criteria listed 
in Paragraph (a) of this Rule after the owner or 
user satisfactorily completes such additional exami- 
nations, tests, and engineering evaluations as may 
be deemed necessary by the Director, to demon- 
strate that the boiler or pressure vessel is suitable 
for operation at the maximum allowable working 
pressure for the term of the inspection certificate. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0419 tMI^AIR AND VENTILATION 
REQUIREMENTS 

(a) A permanent source of outside air shall be 
provided for each boiler room to permit satisfacto- 
ry combustion of the fuel fuels as well as proper 
ventilation of the boiler room under normal operat- 
ing conditions. Provisions for combustion and 
ventilation should comply with the edition of the 
State Building Code applicable to the date of 
installation of the boiler, but in no case shall the 
net free louvered area be less than .00083 sq. ft 



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October 14, 1994 



1101 



PROPOSED RULES 



per 1000 Btu. 

{44 The total requirements of the burners 

for all — fired pressure vessels — in the 
boiler room must be used to determine 
the louver s izes whether fired by solid, 
liquid, or gaseou s fuel s ; however, the 
minimum net free louvercd area must 
not be les3 than one square foot. 
The following table or formula shall be used to 
determine the net louver area in square feet; 



i nrHit 
BTU/IIr. 



Required Air 
Cu. Ft./Min. 



500,000 
1,000,000 
2,000,000 



4 ,000,000 
5,000,000 
6,000,000 
7,000,000 
8,000,000 
9,000,000 

10,000,000 

Btu/hr 

100 x 1.5 



455 

3-SO 
zTXtxy 

hQQQ 

4t500 
hJSQ 

3t350 



Minimum Net 
Louvercd Area 
Sq. Ft . 
4-49 

4^€ 

$S 
4^4- 
&^ 
5t« 

6t6 
»r3 



divided by 300 



= Minimum Net Area 
Req. Sq. Ft. 



60 
(b) (3)When mechanical ventilation is used in 
lieu of Item (1) Paragraph (a) of this Rule , the 
supply of combustion and ventilation air to the 
boiler room and the firing device shall be inter- 
locked with the fan so the firing device will not 
operate with the fan off. The velocity of the air 
through the ventilating fan louver shall not exceed 
500 feet per minute and the total air delivered shall 
be equal to or greater than shown in Item (1) 
Paragraph (a) of this Rule . 

Statutory Authority G.S. 95-69.11; 95-69. 14. 

.0420 BURNER CONTROLS 

Fired boilers and pressure vessels shall be pro- 
vided with burner controls and shall be equipped 
with suitable exhaust flues or chimneys, as re- 
quired by the edition of the North Carolina State 
Building Code applicable to the installation of the 
boiler. While inspection of burner control require- 
ments is not considered a normal part of the 
certificate inspection, the inspector may require the 
owner to demonstrate compliance with this Rule. 
Failure to satisfactorily demonstrate compliance 
shall be justification for refusal to issue an inspec- 



tion certificate. Automatically fired boilers and 
pressure vessels shall be protected by a flame 
failure device which will cut off the fuel su pply 
and prevent ignition in case of a flame failure. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

,45445 .0421 NORTH CAROLINA SPECIAL 

(a) Prcconstruction special. The North Carolina 
Department of Labor may issue an inspection 
certificate for a boiler or pressure vessel construct- 
ed under standards equivalent to those established 
in the ASME Code if an application for permission 
to construct and install a North Carolina Special is 
submitted to and approved by the dir e ctor Director 
prior to commencing construction. The applica- 
tion which may be in the form of a letter, shall 
contain relevant data proving that its construction 
is equivalent to ASME standards., , including but 
not limited to: 

{44 design calculation s ; 

(33 certified mill te s ts or their equivalent; 

{3} a record of welding qualifications and 

performance tests as required by Sec 
tion IX of the ASME Welding and 
Brazing Qualification s Code; 

f4) shop drawings; and 

{54 weld joint details. 

The director Director or his designee may elect to 
visit, at the expense of the owner, user or manu- 
facturer, the facility where the boiler or pressure 
vessel is under construction in order to audit the 
manufacturer's construction techniques, personnel 
qualifications, and quality control program. 

(b) Out of s tate special. The North Carolina 
Department of Labor may issue an inspection 
certificate for a boiler or pressure vessel which has 
operated in another state even if the ASME con- 
struction and stamping requirements otherwise 
contained in the North Carolina Rules are not 
satisfied if the following requirements are satisfied: 

(1) The state in which the boiler or pres- 
sure vessel was operated enforces 
ASME code requirements for similar 
boilers and pressure vessels; 

(2) the boiler or pressure vessel was in- 
spected during construction by an in- 
spector commissioned by the state in 
which the item was installed or manu- 
factured; and 

0) all documentation as required in paragraph 

(a) above is submitted to the director and 
found acceptable; 

f4) the boiler or pressure vessel complice 

with the ASME Code as far as pmctica 



1102 



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October 14, 1994 



PROPOSED RULES 



blc, as determined by the director; 

{§) {3} the report from the last certificate 
inspection performed in the state in 
which the boiler or pressure vessel was 
previously installed is made available to 
the director Director , and the inspection 
resulted in the applicable authorization 
for operation; operation. 

(6) design calculations for pressure vessels 

to be operated in exces s of 3,000 psi 
include a fatigue analy s i s as described 
in ASME Section VIII, Divi s ion 2, to 
determine the operating lifetime of the 
pre s sure vessel, and the propo s al for 
operation details the owners ownc f^ 
monitoring program to verify compli 
ancc to the fatigue analysis; 



additional cxamina 



{?) the results of any 

tion or test deemed nece ss ary by the 
director arc satisfactory; and 

(&) the maximum allowable working pros 

sure for the boiler or pressure vessel as 
established in the calculations is consis 
tent with what is required by the ASME 
Code for s imilar boiler s or pressure 



ve ss el s . 



12} 



(c) Boilers and pressure vessels operating pursu 
ant to section (a) and (b) shall meet all installation, 
alteration, inspection, repair and operation require 
ments of the North Carolina Rule s . The applicant 
shall submit a design specification, certified by a 
professional engineer, to the Director to verify that 
the boiler or pressure vessel meets the ASME 
Code as far as is practicable. The following 
documentation shall be included as a minimum: 
(1) design calculations and drawings; 

material test reports or their equivalent, 
and for material not allowed by ASME, 
an evaluation of the materials in com- 
parison to the most similar material 
approved for ASME construction; 
a record of welding qualifications as re- 
quired by Section IX of the ASME 
Welding and Brazing Qualifications 
Code; and 

satisfactory results of any additional 

examination or test deemed necessary 

by the Director. 

(d} Design calculations for pressure vessels to be 

operated in excess of 3,000 psi shall include a 

fatigue analysis as described in ASME Section 

VIII, Division 2^ to determine the operating 

lifetime of the pressure vessel, and a proposal for 

operation that details the owner's monitoring 

program to verify compliance with the fatigue 



(3) 



£4} 



analysis. 

(e) The maximum allowable working pressure 
for the boiler or pressure vessel as established in 
the calculations shall be consistent with what is 
required by the ASME Code for similar boilers or 
pressure vessels. 

(f) Boilers and pressure vessels operating as 
North Carolina State Specials shall meet all instal- 
lation, alteration, inspection, repair, and operation 
requirements of these Rules. 

(g) The Director may a pprove operation of 
boilers and pressure vessels which were construct- 
ed to the requirements of a department of the 
federal government which enforces requirements 
equivalent to the ASME Code, provided an appli- 
cation as otherwise required by these Rules is 
submitted to the Director and found acceptable. 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1103 



PROPOSED RULES 



SECTION .0500 - NON-STANDARD BOILERS AND PRESSURE VESSELS 

.0501 GENERAL REQUIREMENTS 

(a) All aspects of a nonstandard power boiler or pressure vessel including, but not limited to, its installation, 
repair, alteration, inspection, appurtenances, and operation shall conform to the ASME Code and the National 
Board Inspection Code and these Rules, except for the design criteria for the boiler or pressure vessel proper 
and pressure piping. 

(b) Replacement parts for the boiler proper and pressure piping or pressure vessel shall conform to the 
ASME Code and these Rules. 

(c) An authorized inspector shall determine the maximum allowable working pressure for a nonstandard 
power boiler or pressure vessel in accordance with these Rules pursuant to the formula in Paragraph A 33 of 
the ASME Code, Section I. 

(d) The maximum allowable working pressure on the shell of a nonstandard boiler or pressure vessel shall 
be determined by the strength of the weakest course computed from the thickness of the plate, the tensile 
strength of the material, the efficiency of the longitudinal joint, inside diameter of the weakest course and the 
factor of safety set by these Rules. 

(e) For cylindrical pressure parts subject to internal pressure: 
(TStE)/(RFS) ^_ maximum allowable working pressure, psig. 

(f) Design variables: 

(1) TS = ultimate tensile strength of shell plate; if unknown, it shall be taken as 45,000 p si; 

(2) t ff. minimum thickness of shell plate of weakest course, in inches; 

(3) E = efficiency of longitudinal joint depending upon construction; 

(A) values for riveted joints are determined by calculated riveted efficiency; and 

(B) values for fusion welded joints are determined pursuant to the following table: 



WELD JOINT DESIGN 

single lap weld 
double lap weld 
single butt weld 
double butt weld 



EFFICIENCY 
0.40 
0.50 
0.60 
0.75 



(4) R = inside radius of weakest course of shell, in inches, provided the thickness does not exceed 10 
percent of the radius; if the thickness is over 10 percent of the radius, the outer radius shall be 
used; 

(5) FS = factor of safety allowed by these Rules. 

(g) The maximum allowable working pressure for cylindrical nonstandard boilers and pressure vessels 
subject to external pressure, flat or formed heads, and non-circular boilers and pressure vessels shall be 
determined by the most applicable rules for new construction in the ASME Code. 

(h) The maximum allowable working pressure for cast iron boilers, including boilers having cast iron shells 
or heads and steel or wrought iron tubes, shall be not greater than 30 psig for water service and 15 psig for 
steam service. 

£i} Replacement parts, repair, and alteration of nonstandard boilers and pressure vessels shall be as required 
for ASME stamped boilers and pressure vessels of similar design. 

Statutory- Authority G.S. 95-69.11; 95-69.14. 



.0502 NONSTANDARD HEATLNG BOILERS 

{&) — All aspects of a nonstandard heating boiler 
including, — but — Ret — limited — te-, — its — installation, 
repair, alteration, inspection, appurtenance s , and 
operation shall conform to the ASME Code, The 
National Board In s pection Code, and the s e Rule s , 
except for the design criteria for the boiler proper. 

(b) Replacement parts for the boiler proper shall 
conform to the ASME Code and these Rules. 



(e) — The maximum allowable working pre ss ure 
for a nonstandard heating boiler shall be as fol 

45- 






boilers used for steam service — 13 psig; 
riveted boilers — determined pursuant to 
Paragraph A 33 of the ASME Code, 
Section I, except where hot water scr 
vice i s used, the maximum allowable 
working pressure shall not exceed 160 



1104 



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NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



psig or 250°F; 

{3) welded boilers — determined pursuant to 

Section IV of the ASME Code; or 

f4) east — iron — boiler s — (including — boilers 

having cast iron s hell s or heads and 
steel or wrought iron tube s ) 30 psig for 
water service and 15 psig for steam 
s ervice. 

Statutory Authority G.S. 95-69.11; 95-69.14. 



.0503 NONSTANDARD PRESSURE 
VESSELS 



vessel 



(a) — All aspects of a non s tandard pre ss ure 
including, — but — net — limited — te; — its — in s tallation, 
repair, alteration, inspection appurtenance s , and 
operation shall conform to the ASME Code, the 
National Board Inspection Code, and those Rule s , 
except for the design criteria for the pressure 
vessel proper. 

(b) — Replacement parts for the pre ss ure vessel 
proper shall conform to the ASME Code and these 
Rules. 

{e) — The maximum allowable working pre ss ure 
on the shell of a nonstandard pressure vessel shall 
be determined by the strength of the weakest 
course computed from the thickne ss of the plate, 
the tensile strength of the plate, the efficiency of 
the longitudinal joint, the inside diameter of the 
weakest course and the factor of s afety set by the s e 
Rule s . 

(d) TStE RFS — = maximum allowable working 
pres s ure, p s ig, where: 

m TS = ultimate ten s ile s trength of s hell 

plate; if unknown, it shall be taken as 
4 5,000 psi for temperatures not exceed 
ing 700°F; 

(3) 1 = minimum thickness of shell plate of 

weakest course, in inches; 
E — = — effici 



m- 



;icney — of longitudinal joint 
depending upon con s truction; 

{4) R — inside radius of weakest cour s e of 

s hell, in inche s , provided the thicknes s 
docs not exceed 10 percent of the radi 
u s ; if the thickness is over 10 percent 
of the radiu s , the outer radius shall be 
used; 

(5) FS = factor of s afety allowed by these 

Rules. 
(e) — The maximum allowable working pressure 
for cylindrical non s tandard pressure vessels s ub 
jeeted to external or collapsing pressure shall be 
determined by the rules for new construction in 
Section VIII, Division 1 of the ASME Code. 
ff) — The maximum allowable working pressure 



for formed head s under pressure shall be deter 
mined by the appropriate formulas for new con 
s truction in Section VIII, Division 1 of the ASME 
code and the tensile strength in Paragraph (c) of 
thi s Rule. 

ft) value s for riveted joints arc determined 

by calculated riveted efficiency; and 

(3) values — fef — fusion — welded joints — afe 

determined pursuant to the following 
table: 
PERCENT 
single lap weld. .. 4 
double lap weld... 60 
single butt weld ... 60 
double butt weld ... 75 

forge weld 70 

brazed steel 8 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0504 FACTORS OF SAFETY 

(a) For nonstandard power boilers, the factor of 
safety is four and one-half, except for 
horizontal-return tubular boilers having continuous 
longitudinal lap seams more than twelve feet in 
length, where the factor of safety is eight. When 
this latter type of boiler is removed from its 
existing setting, it shall not be reinstalled for 
pressure in excess of fifteen psig. 

(b) The factor of safety for nonstandard power 
boiler with lap-riveted longitudinal seams less than 
twelve feet in length is six. 

(c) The factor of safety for a nonstandard power 
boiler with butt and double-strapped longitudinal 
seams is five. 

(d) The factor of safety for nonstandard heating 
boilers is that u s ed in computing its maximum 
allowable working pressure. 

fe)(d) For nonstandard pressure vessels, the 
factor of safety is four, except that for non-ASME 
Code constructed hydropneumatic storage tanks 
containing water under pressure at ambient temper- 
atures the factor of safety is two. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

SECTION .0600 - HOT WATER 

VESSELS USED FOR SUPPLY 

OR STORAGE 

.0601 MINIMUM STANDARDS 

fa) — All hot water vessels used for s upply, s tor 
age or both that are installed after January 1, 
1951, and that exceed any of the limitation li s ted 
under (1), (2) or (3) of this Paragraph s hall, in 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1105 



PROPOSED RULES 



addition to meeting all other requirements of thi s 
Section, be constructed and s tamped pursuant to 
the ASME Code, Section IV or Section VIII, 
D i vi s ion 1, as applicable: 

(±3 heat input of 200,000 BTTU's per hour; 

(33 water temperature 200 °F; or 

(33 nominal — water containing capacity of 

120 ga l lon s . 
(b3 — All hot water vessels used for supply, stor 
age or both s hall be equipped, at a minimum, with 
the following controls and devices as applicable: 

(4-3 Operating temperature control; 

(23 High limit temperature control; 

(33 A positive flame failure cutoff; 

(43 American — Gas — Association — approved 

burners and control s ; 

(§3 At least one officially rated ASME and 

national — board — approved — type — r e lief 
valve or at least one officially rated 
ASME and — national — board approved 
type pressure temperature relief valve 
of the automatic reseating type set to 
relieve at or below the maximum allow 
aWe — working pressure of the vessel; 



:licf vah 



(6) When more than one relict valve i s 

required, the additional valve or valves 

sheH — be officially — rated ASME and 

national board approved and s hall be set 

within a range not to exceed 20 percent 

of the lowest pre ss ure at which any 

valve is set. 

(c) Relief valve s s hall be installed on the top of 

the vessel with a vertical or horizontal 3pindlc 

directly connected to: 

(4-) a tapped or flanged opening in 

the ve ss el; 

(2-) a fitting connected to the vessel 

by a close nipple; or 

(33 a valvcles s hot water outlet pipe 

located not more than three inch 
cs from the ve ss el. 
{4j — Relief valves shall: 



W" 



m- 



lb s tantial — ttftt 



device that 



nave a s ub s tantial — lining 

will lift the disk from its scat at least 

1/16 inch when there is no pressure on 

the ves s el; 
-be — spring — loaded — without — the — d4sk 

guide s — ef) — the — pre ss ure — s ide of the 

valve; 
(33 not be smaller than 3/ 4 inch, nor larger 

than four inches; and 
(43 be arranged so that they cannot be reset 

to relieve at a higher pressure than the 

maximum pressure permitted by this 



Section. 
Statutory Authority G.S. 95-69.11; 95-69.14. 

.0602 DISCHARGE LINES 

(a3 — Di s oharg e lin e s from th e r e li e f valv e , wh e n 
install e d, shall b e full size for th e e ntir e l e ngth of 
th e lin e and pip e d to a saf e location, grad e d down. 

(b} — If disoharg e is pip e d outsid e , a te e s hall be 
install e d in th e disoharg e lin e insid e the building 
with a nippl e at l e ast t e n inch e s in length turned up 
to r e liev e th e drain lin e pr e ssur e in cas e of outside 
s toppag e . 

{ej — Th e r e li e f valve shall b e install e d so as to 
pr e v e nt wat e r damag e wh e n t e st e d. 

(d3 — Th e op e rator shall manually t e st th e r e lief 
valv e by hand onc e e aoh month, and every two 
y e ar s with an authoriz e d insp e ctor pr e s e nt. 

(e) — No valve of any description shall bo placed 
between th e r e li e f valv e and th e hot wat e r vessel 
or storag e tank or on th e disoharge pip e between 
the safety reli e f valv e and th e atmosph e r e . 

Statutory Authority G.S. 95-69.11; 95-69.14. 



.0603 



VESSELS HEATED INDIRECTLY 
BY STEAM OR WATER 



When a hot water supply or s torage vessel is 
heated indirectly by steam or hot water in a coil or 
pipe, — the — pressure — ef — t emp e ratur e — ef- — heating 
medium used shall be such that the safe working 
pressure of the vessel is not exceeded, and a relief 
valve of at least one inch diameter, pipe size, set 
to relieve at or below the maximum allowable 
working pressure of that vessel, s hall be installed 
on top of the vessel. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0604 PROHIBITION AGAINST USE 

Hot water s upply or s torage vessel s , regardles s 

&# — heat input, water temperature er 

water containing capacity, shall not be used as 
heating boilers. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0605 VENT PIPES 

All tanks or heaters fired by s olid, liquid, or 
gaseous fuels shall bo equipped with a vent pipe or 
flue conforming to the requirements of Section 
7.2.1 of the National Fire Protection Association 
Standard 5 4 , 198 4 edition. Thi s s ection i s hereby 
adopted by reference. — Copies may be obtained 
from the: 



1106 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



National Fire Protection A s sociatio n 

Publication Sales Division 

Battcrymarch Park 

Quincy, Massachu s etts 02269 

at a cost of nine dollars and fifty cents ($9.50). 

Copie s — may — be examined — in the office of the 

d i vi s ion. 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 

.0606 HEAT SOURCE STANDARDS 

{a) — All vessels fired by liquid or gaseou s fuel s 
or heated electrically shall be equipped with safety 
control s , — s afety limit switches, — and burners or 
electric elements in accordance with any nationally 
recognized s tandard. 

(b) Such equipment s hall be stamped or labeled 
by a nationally recognized certifying organization. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0607 ACCESS TO THE VESSEL 

(a) Vessels shall be located s o that acce ss to the 
controls, safety relief valves and rain is practical. 

{b) — All ve s sel s with a manhole shall be so 
located a s to provide at least 24 inches clearance 



between the manhole and 



obstruction. — If the 



afty 

ve ss el is equipped with inspection openings, at 
lea s t 12 inches clearance must be provided, and 
the manufacturer' s stamping mu s t be acce ss ible to 
the inspector. 

Statutory Authority G. S. 95-69.11; 95-69. 14. 

.0608 PRESSURE-REDUCING VALVES 
IN CITY LINES 

Pressure reducing valves shall be installed in the 
city line s where city pre s sure or water pressure is 
more than 75 percent of the safe working pressure 
of the ve s sel. 

Statutory Authority G.S. 95-69. 11; 95-69. 14. 

.0609 SHUTOFF VALVES 

A shutoff valve shall be provided in the cold 



shutort valve snail be provided in 
water branch line next to each ve s sel. 



■eef 
If-Ae 



water containing capacity of the vessel exceed s 
120 gallon s , a check valve shall be installed on the 
s ource s ide of the shutoff valve in the branch line. 



Statutory Authority G.S. 95-69. 11; 95-69. 14. 

SECTION .0800 - FORMS 
.0801 INSPECTION CERTIFICATE 



An inspection certificate is issued by the director 
Director and certifies that a boiler or pressure 
vessel complies with Article 7A of G.S. Chapter 95 
and these Rules. It includes the: 

(1) North Carolina serial number; 

(2) Maximum a Allowable working pressure; 
£3) Safety valve s et pressure; 

(4) Factor of safety; 

(3) (5)Type of boiler or pressure vessel; 

(4) {^Manufacturer's name; 

{5} f?)Year the boiler or pressure vessel was 
built; 

(6) {&)Location of the boiler or pressure 
vessel; 

(7) (9)Director's name applied by computer; 
and 

(8) ftO)Commissioner's name applied by 
computer. 

Statutory Authority G.S. 95-69.11. 

.0803 NORTH CAROLINA CERTIFICATE 
OF COMPETENCY 

A certificate of competency, signed by the 
Chairperson of the Board of Boiler and Pressure 
Vessel rules and the director Director is issued to 
persons meeting the qualifications in G.S. 
95-69. 15(c) and certifies that the person named has 
passed the inspector examination and is competent 
to conduct inspections for boiler and pressure 
vessels. 

Statutory Authority G.S. 95-69.11; 95-69.14. 

.0804 NORTH CAROLINA COMMISSION 

A North Carolina commission card Commission 
is a wallet-sized card, signed by the Chairperson 
of the Board of Boiler and Pressure Ve ss el rule s 
and certifies that the person named is competent 
and authorized to conduct inspections for boilers 
and pressure vessels. 

Statutory Authority G.S. 95-69.15. 

.0805 OWNER-USER AGENCY 
APPLICATION 

An owner-user agency application states that the 
company seeking owner-user status agrees to abide 
by Article 7A of G.S. Chapter 95 and these Rules. 
The application contains the following: 

(1) company name and address; 

(2) plant name and address; 

(3) name of the supervising inspector; 

(4) names of inspectors and the date that the 
North Carolina commis s ion was issued; 



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1107 



PROPOSED RULES 



a copy of the inspector's National Board 
Commission; 

(5) name of a company official requesting 
the agency; and 

(6) commissioner's signature and signature of 
the chairperson of board. 

Statutory Authority G. S. 95-69. 15. 

.0807 CONTRACTOR'S REPORT 

The contractor's report is a request for inspection 
and contains information regarding boilers and 
pressure vessels installed in all public buildings 
and apartment houses of six families or more 
which are subject to these Rules . It includes data 
on: 

(1) the installing contractor; contractor's 
name and mailing address; 

(2) the manufacturer and owner of the 
vessels; 

(3) the number number, type, and location of 
the vessels; and 

(4) the heat input of hot water heaters , if 
applicable. 

Statutory Authority G.S. 95-69.11. 

.0808 ACCIDENT REPORT 

An accident report contains information on the 
following: 

(1) type of vessel; 

(2) vessel manufacturer; 

(3) safety and safety relief valves; and 

(4) type and probable cause of the accident. 

Statutory Authority G.S. 95-69.11. 

.0809 INSPECTION REPORT 

The inspection report covers in detail all 
pertinent information regarding the boiler or 
pressure vessel. The report includes all applicable 
identification numbers for the boiler or pressure 
vessel, the allowable pressure, the results of the 
inspection, corrective action necessary for issuance 
of an inspection certificate, date of inspection, and 
the signature of the inspector. It includes: 

fH all applicable numbers and stamping for 

regi s tration; 

the pressure allowed; and 



m- 

0) the factor of safety; 

i4j information on the owner or user; 

iSj— allowable s tres s ; and 

(6) firetube boiler information. 



,0810 REINSPECTION REPORT 

The reinspection report covers the condition of a 

boiler of pressure ves s el sad contain s 

recommendations, if necessary, on changing the 
maximum allowable working pressure and safety 
valve setting. 

Statutory Authority G.S. 95-69.11. 

.0812 REPORT OF REPAIR OR 
ALTERATION 

The record of report of repair or alteration 
describes repairs, alterations, and the results 
hydrostatic pressure tests. 

Statutory Authority G.S. 95-69.11. 

.0813 SHOP OR FIELD AUDIT REPORT 

The director' s shop or field audit report is a 
report of the shop or field inspection activities of 
an inspector pertaining to inspection of the con- 
struction of ASME boilers and pressure vessels 
covering the following: 

(1) inspector's conduct activities ; 

(2) materials used in fabrication; 

(3) welding procedures; 

(4) non-destructive examinations used; 

(5) manufacturer; manufacturing process; 

(6) quality control system; and 

(7) authorized inspector's logbook. 

Statutory Authority G.S. 95-69.11. 



.0814 



The- 



REPORT OF NUCLEAR 
INSPECTOR'S ACnvnTES 



Statutory Authority G.S. 95-69.11. 



report of the nuclear inspector's activities is 
a — semi annual — audit — prepared — by — the — director 
covering all aspects of a nuclear inspector's activi 
tics on the job site. 

Statutory Authority G.S. 95-69.11. 

.0815 REPAIR LETTER NOTICE OF 
NONCOMPLIANCE 

The repair letter notice of noncompliance speci- 
fies repairs or alterations that must be made for a 
boiler or pressure vessel to comply with Article 
7A, G.S. Chapter 95, and these Rules. 

Statutory Authority G.S. 95-69.11. 

.0816 MENACE TO PUBLIC SAFETY 
LETTER 

The menace to public safety letter is sent by the 
director while inspection certificate is in effect and 



1108 



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PROPOSED RULES 



inform o the owner or user of the statu s of th e 
boiler or pressure vessel and of his or her rights 
under Article 7 A of G.S. Chapter 95. 

Statutory Authority G.S. 95-69.11. 

TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Marine Fisheries Commission intends 
to adopt rule cited as 15 A NCAC 31 .0017. 

1 he proposed effective date of this action is January 1 , 1995. 

1 he public hearing will be conducted at 7:00 p. m. on November 7, 1994 at the Carteret Community College, 
Joslyn Hall, 3505 Arendell Street, Morehead City, North Carolina. 

Business Session: The Marine Fisheries Commission will conduct a Business Session on December 2-3, 1994, 
at the MDS Center, 422 Raleigh Road, Smithfield, NC, Beginning at 9:00 a.m. on the morning of December 
2, 1994, to decide on this proposed rule. 

ixeasonfor Proposed Action: Establishes guidelines and requirements for application and administration of 
funds appropriated by General Assembly. 

Vsomment Procedures: Comments and statements, both written and oral, may be presented at the hearing. 
Written comments are encouraged and may be submitted to the Marine Fisheries Commission, P.O. Box 769, 
Morehead City, NC 28557. These written and oral comments must be received no later than 10:00 a.m., 
December 1 , 1994. Oral presentations may be limited in length depending on the number of people that wish 
to speak at the public hearing. 

hiditor's Note: This Rule was filed as a temporary rule effective September 26, 1994 for a period of 180 
days or until the permanent rule becomes effective, whichever is sooner. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 31 - GENERAL RULES 

.0017 FISHERY RESOURCE GRANT PROGRAM 

(a) Purpose. The purpose of this program js to enhance North Carolina's coastal fishery resources. 

(b) Types of projects. Projects shall address one or more of the following areas of research: 

(1) New fishing equipment and techniques - particularly those that reduce bycatch and fishing impact 
on non-target species and size classes. 

(2) Assess fishing industry trends - especially those that identify new opportunities and strategies that 
can be used to develop and conserve North Carolina fishery resources. 

(3) Environmental studies - particularly those directed toward reducing adverse environmental impacts 
of fishing techniques, restoring fishery habitat, and understanding environmental controls of fish 
and shellfish abundance. 

(4) Other Fishery Issues that will enhance North Carolina's coastal fisheries. 

(c) Eligibility to receive grants. Proposals will be considered from a diversity of sources including, but not 
limited to fishers, groups of fishers, and fishing companies. 

(d) Application for grants: 

(1) Grant proposals shall be typed or printed, and five copies submitted to the North Carolina Division 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1109 



PROPOSED RULES 



of Marine Fisheries at Post Office Box 769, Morehead City, North Carolina 28557-0769. 
Submitted proposals must be postmarked no later than January 16, 1995. Proposals received or 
postmarked later than January 16 may not be considered for funding. 

(2) Grant proposals shall contain at least the following information: 

(A) Name(s), mailing address(es), telephone number(s), signature(s) and social security or federal 
identification number of the applicant(s). 

(B) A description of the project, its objectives, and its relationship to current fishery problems/issues, 
written in sufficient detail to be realistically evaluated by professional fishery scientists and 
managers. 

(C) A detailed statement of the projected costs of the project. Description of participant cost-sharing 
and explanation/justification of projected costs is encouraged. 

(D) Biographical information documenting experience and expertise of project participants. 

(E) A description of how the project will be carried out, results evaluated, and findings made public. 

(F) An explanation of how the project will enhance North Carolina's coastal fishery resources. 

(G) Any other information that may be needed to enable the Secretary of the Department of 
Environment, Health, and Natural Resources to make a decision on the application. 

(3) Projects may extend up to two years from the date of award, except for aquaculture projects which 
may extend for three years. 

(4) Once approved, project time periods may be amended for good cause, but funding may not be 
increased. 

(e) Review of proposals: 

(1) Proposals will be reviewed and applicants notified in writing of acceptance or denial by the North 
Carolina Division of Marine Fisheries. Incomplete proposals will be returned to the applicant with 
a written description of deficiencies. 

(2) Proposals will be reviewed by fishery professionals who will assign scores as shown below 
(maximum score ff, 100 points): 

(A) Project Quality - the likelihood that the project will produce meaningful results directly applicable 
to enhancing North Carolina's fishery resources (30 points). 

(B) Potential for Public Benefit - the likelihood that application of successful project results would 
be of significant benefit to the citizens of North Carolina (20 points). 

(C) Qualifications of Applicants - the likelihood that participants can successfully complete the project 
and effectively disseminate results to the public (20 points). 

(D) Innovativeness - the likelihood that the project would provide reliable new information that would 
improve utilization and/or management of fishery resources (20 points). 

(E) Cost Effectiveness ; the accuracy and appropriateness of project costs and their relationship to 
expected public benefit of the completed project (10 points). 

(3) Projects will be reviewed by members of the Marine Fisheries Commission, members of the 
relevant Marine Fisheries Commission Advisory Committee, and staff of the Division of Marine 
Fisheries. Competing large proposals and their reviews may be comparatively assessed by the 
Marine Fisheries Commission Planning Advisory Committee. Proposals to be granted will be 
selected by the Marine Fisheries Commission. 

(f) Award of grants: 

(1) The North Carolina Division of Marine Fisheries shall administer the proposal review process and 
shall submit a list of eligible proposals ranked in order of total review score to the Marine Fisheries 
Commission. 

(2) The North Carolina Marine Fisheries Commission shall make all grant offers on projects including 
the level of funding on each project. 

(3) Funds will be conveyed to grantees through contracts with the North Carolina Department of 
Environment, Health, and Natural Resources. 

(4) Of the total funds granted for each project, up to 25 percent may be paid upon signing of the 
contract if such payment is requested as part of the grant application. 

(5) Of the total funds granted for each project, 25 percent shall be held back and paid only upon 
acceptance of the final project report by the North Carolina Marine Fisheries Commission. 

(6) Other payments to grantees shall be paid upon receipt of expenditure reports or invoices at intervals 
of not less than three months. 



1110 9:14 NORTH CAROLINA REGISTER October 14, 1994 



PROPOSED RULES 



£7} Grants will be awarded as evenly as practicable among the Northern. Pamlico. Central, and 

Southern coastal areas of North Carolina. 
(8) Prior to initiation of work on research projects, grantees shall secure all necessary state and federal 

permits and licenses. 
£g} Reporting: 

(1) Grantees shall submit written progress reports at six-month intervals describing status of their 
projects, progress toward achieving project objectives, notable occurrences, and any significant 
problems encountered and steps taken to overcome the problems. Forms for such reports will be 
available from the Division of Marine Fisheries. 

(2) As a condition of receiving a Fishery Resources Grant, the applicant shall agree to submit 
acceptable semi-annual reports. A technical representative of the Division of Marine Fisheries shall 
determine if reports are acceptable. If the representative finds the report unacceptable, the project 
leader will be notified of deficiencies and must provide an acceptable report within 30 working 
days. If an acceptable report is not received in the specified time, the a pplicant shall be required 
to repay the Division a prorated refund of project costs as shown in Table _L 

Table _L Prorated refund schedule for non-compliance with report requirements. 
Percent of Work Completed Percent 

and Acceptably Reported Refund 

25 85 

50 60 

75 35 

100 

An applicant who has been found in noncompliance with reporting rules and who does not agree 
to provide such reports may request that the Marine Fisheries Commission informally mediate the 
case. To invoke this method of mediation, both the applicant and the Division of Marine Fisheries 
must stipulate that the Commission mediation is binding. An a pplicant will have a maximum of 
180 days to make repayment to the Division following the final appeals process. 

(3) Grantees shall submit a written draft final report within 60 days of the completion of their projects 
to the Division of Marine Fisheries for review and comment in a format specified by the Division 
of Marine Fisheries. 

(A) If the Division of Marine Fisheries finds the draft final report substantially acceptable, the 
Division shall so notify the Marine Fisheries Commission and grantee(s). The grantee(s) shall 
make any needed minor corrections and re-submit the final report to the Division. The Marine 
Fisheries Commission will consider the Division's recommendation for approval and may approve 
the report and authorize final payment. 

(B) If the Division of Marine Fisheries finds the draft final report substantially deficient because of 
lack of adherence to established procedures, insufficient sampling, lack of data to support 
conclusions, or other reasons pertaining to fulfillment of project requirements, the Division shall 
notify the Marine Fisheries Commission and grantee(s). 

(i) If the Marine Fisheries Commission accepts the Division's recommendation, it shall notify 
the grantee(s) in writing of the steps it must take to meet jts contractual obligations hi order 
to satisfactorily complete the project and final report and receive final payment. 

(ii) If the Marine Fisheries Commission rejects the Division's recommendation of substantial 
deficiency, it shall instruct the Division of Marine Fisheries to proceed with final a pproval 
as provided in Part (A) of this Subparagraph. 

(C) Grantees may be required to give an annual verbal report on their project. 

£D) The Division of Marine Fisheries shall publish an annual report summarizing the status of all 

projects conducted under this program. 
£E) The Division of Marine Fisheries shall conduct a field review of each project at least annually. 

The Division may request the assistance of other agencies of the Department of Environment. 

Health, and Natural Resources and of the consolidated University of North Carolina to conduct 

field reviews. 

(4) Grantees shall submit a final expenditure report or invoice within 45 days of the end of the 
contract. 



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PROPOSED RULES 



Statutory Authority G.S. 113-134; 143B-289.4; 1993 (Regular Session 1994), c. 769, s. 106. 



****************** 

CHAPTER 19 - HEALTH: 
EPIDEMIOLOGY 

SUBCHAPTER 19A - COMMUNICABLE 
DISEASE CONTROL 

RULE .0201 - CONTROL MEASURES - 
GENERAL 

I\otice is hereby given that the Commission for 
Health Services will convene a meeting to consider 
a petition for rulemaking. The petition requests 
the Commission amend the rule with regard to 
anonymous testing for HIV infection located at 15 A 
NCAC 19A .0102(a)(3) by deleting those provi- 
sions which provide for the elimination of anony- 
mous testing. 

1 he meeting will be conducted at 9:00 a.m. on 
November 4, 1994 at the Augusta Room, Four 
Seasons Holiday Inn, Greensboro, NC 

(comment Procedures: All interested and poten- 
tially affected persons, groups, businesses, associ- 
ations, institutions or agencies are invited to attend 
the meeting and make their views and opinions 
known to the Commission for Health Senices. 

TITLE 18 - SECRETARY OF 
STATE 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Secretary 1 of State's Office - 
Notary Public Division intends to amend rules 
cited as 18 NCAC 7 0101 - .0103, 0202, .0204 - 
.0208, .0301 - .0302 and repeal .0201. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 14, 1994 at the Legislative 
Office Building, 300 N. Salisbury Street, 301 (F) 
Conference Room, 

Ixeason for Proposed Action: Update rules to 
conform to current laws and practices. 



(comment Procedures: Any interested person may 
comment at the hearing or may send written 
comments to the Division to be received no later 
than November 14, 1994. Comments should be 
directed to: David S. Massey, Legislative Office 
Building, 300 N. Salisbury Street, Raleigh, NC. 

CHAPTER 7 - NOTARY PUBLIC DIVISION 

SECTION .0100 - GENERAL PROVISIONS 

.0101 LOCATION AND HOURS 

The Notary Public Division of the Department of 
the Secretary of State is located in Room 302, 
Legislative Office Building, 300 North Salisbury 
Street, Raleigh, North Carolina 27611 27603- 
5909 . 

Office Hours for the public are 8:00 a.m. to 4:00 
p.m. Monday through Friday with the exception of 
state holidays. 

Statutory Authority G.S. 143A-23. 

.0102 GENERAL PURPOSE 

The general purpos e purposes of the Notaries 
Public Division k include the review and process- 
ing of initial and reappointment applications for 
commissions as notaries public , the issuance of 
notari e s public - commissions, collecting f e ee for 
e ach commission issu e d t he certification of instruc- 
tors who teach the Notary Public Education 
course, the preparation of the Notary Public 
Education Instructors Manual , maintaining the 
maintenance of files on each notary, inv e stigating 
the investigation of any complaints mad e against a 
notary, regarding the conduct of specific notaries. 
issuing, the issuance of Certificates of Authority 
for North Carolina notaries, writing manual for 
use of those applying for commission s, answ e ring 
qu e stions and the providing of information regard- 
ing the offic e Notary Public Division, its regula- 
tions, and its procedures . 

Statutory Authority G.S. 10A-4; 10A-6; 10A-9(f); 
10A-13. 

.0103 NOTARIES PUBLIC DEPUTY 

The chief officer of the division is the notaries 
public d e puty director , an employee of the Secre- 
tary of State, who has general supervisory control 
over the Division. 

Statutory Authority G.S. 143A-23. 



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PROPOSED RULES 



SECTION .0200 - APPOINTMENT 
OF NOTARIES PUBLIC 

.0201 REQUIREMENTS FOR 

INITIAL APPOINTMENT 

The appointment of notarie s public i s within the 
discretion of the Secretary of State. — Equal consid 
oration will be given to all person s making applica 
tion on the form "Application for Initial Appoint 
ment aa Notary Public" and meeting the eligibility 
requirements set out in G.S, 10 1.1. 

Statutory Authority G.S. 10-1. 

.0202 INVESTIGATIONS 

In addition to any other requirements To ensure 
that persons commissioned as notaries public and 
applicants for commissions satisfy statutory re- 
quirements, the Secretary of State may investigate 
the fitness of any applicant through inquiry to the 
various law enforcement offices of the state and 
state or local officials. 

Statutory Authority G.S. 10A-4(c); 10A-U(d). 

.0204 DISPOSITION OF COMMISSIONS 

After notary public commissions have been 
issued, they will be sent directly to the register of 
deeds in the county in which the applicant holds 
legal re s idence lives or, if the applicant does not 
reside in North Carolina, in the county in which 
the applicant works . The commission will not be 
delivered to the applicant. The applicant will 
receive a transmittal letter of notice to appear 
before the Register of Deeds to take the oath of 
office. 

Statutory Authority G.S. 10A-8. 

.0205 FEE 

(a) No commission will be issued until the 
statutory fee has been received. 

(b) — An application may be withdrawn and the 
fee refunded upon reque s t of the applicant prior to 
the issuance and mailing of the commission. After 
a commission has been issued and mailed, no 
r e funds or changes will be made. 

Statutory Authority G.S. 10A-7. 

.0206 REQUIREMENTS FOR 
REAPPOINTMENT 

(a) For reappointment as a notary public, e ither 
the applicant must complete a current "Application 
for Reappointment as Notary Public" or th e form 



sent the notary at the time of issuance of last 
commission must be completed and submitted and 
must submit it to the Notary Public Division with 
the statutory fee. 

(b) The applicant must submit new reoommenda 
tions meeting the requirements for an initial ap 
pointment if the last commission held has been 
expired for more than 10 years. 

(e) Commissions reappointing a notary may not 
be issued more than two weeks prior to expiration 
of the current commission. 

(c) ^Commissions will not be back-dated. 

Statutory Authority G.S. 10A-6. 

.0207 REVOCATION OF COMMISSIONS 

(a) Any uncollectible fee payable to the Notary 
Public Division that is not paid within 10 days 
following notice from the Division will be cause 
for immediate revocation of the commission of the 
notary public owing that fee . 

{¥) — Any conviction of a felony which results in 
loss of citizenship will be cause for immediat e 
revocation. 



(e) — Any mi s conduct on the part of a notary 
public in line of duty may re s ult in revocation of 
commis s ion if it i s determined that the best interest 
of the public will be so served. 

(d) — A s econd legitimate complaint against any 
notary public shall be considered just cause for 
revocation of commission s . 

(b) (e)When a commission shall be is revoked, 
the register of deeds for the county in which the 
notary was appointed and the notary public shall 
be notified in writing by the Secretary of State and 
the date of revocation shall be given. 

Statutory Authority G.S. 10A-7; 10A-13(d). 

.0208 CERTIFICATES OF AUTHORITY 

fa) Certificates of authority shall be issued for 
any qualified notary public upon request and 
receipt of a two dollar ($2.00 ) the statutory fee of 
six dollars and twenty five cents ($6.25) by the 
Secretary of State. 

{b) Certificate s of authority may be issued by 
the regi s ter of deeds for counties in which notarie s 
are not qualified upon receipt of certified copy of 
commi s sion from register of deeds in county in 
which qualified. 

Statutory Authority G.S. 10A-9(f). 

SECTION .0300 - NOTARY 
PUBLIC EDUCATION PROGRAM 



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1113 



PROPOSED RULES 



.0301 APPROVED COURSE OF STUDY 

In order to be approved by the Secretary of 

State, a course of study for applicants for appoint- 
ment as a notary public must be: 

(1) based on the Instructor's Guide Manual 
developed by the Department of Commu- 
nity Colleges and the Department of the 
Secretary of State; 

(2) taught by an instructor certified by the 
Secretary of State. 

Statutory Authority G.S. 10A-4(b)(3). 

.0302 LNSTRUCTORS 

(a) In order to be certified to teach a course of 
study for notaries public, an instructor must: 

(1) complete a six hour instructor's course 
taught by the notaries public deputy 
director or other person approved by 
the Secretary of State a test upon the 
completion of such course with a grade 
of not less than 80; 

(2) have six months active experience as a 
notary public and maintain a current 
commission as a notary public ; provid- 
ed that registers of deeds, their assis- 
tants and deputies, and clerks of court, 
their assistants and deputies and practic- 
ing attorneys at law shall be exempt 
from this requirement so long as they 
remain employed in the capacities 
named; 

(3) purchase an approved the current notary 
public manual guidebook . 

(~b) Certification shall be effective for two years 
and may be renewed by taking a recertification 
course taught by the notaries public deputy direc- 
tor or other person approved by the Secretary of 
State. 

Statutory Authority G.S. 10A-4(b)(3). 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to amend rule cited as 19A 
NCAC2D .0825. 

1 he proposed effective date of this action is 
February 1, 1995. 



Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and mailed to Emily Lee, Depart- 
ment of Transportation, P.O. Box 25201, Raleigh, 
NC 27611. The demand must be received within 
15 days of this Notice. 

treason for Proposed Action: Amendment allows 
DOT to make public plan holder lists for bidding 
on DOT contracts. 

(comment Procedures: Any interested person may 
submit written comments on the proposed rule by 
mailing the comments to Emily Lee, Department of 
Transportation, P.O. Box 25201, Raleigh, NC 
27611 , within 30 days after the proposed rules are 
published or until the date of any public hearing 
held on the proposed rules, whichever is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY 
OPERATIONS 

SECTION .0800 - PREQUALD7ICATION: 

ADVERTISING AND BIDDING 

REGULATIONS 

.0825 CONFIDENTIALITY OF COST 

ESTIMATES AND PLAN HOLDER 
LISTS 

(a) All cost estimates prepared for the purpose 
of comparing bids; and the names and identity of 
corporations, firms, partnerships, individuals or 
joint venturers who have requested plans or pro- 
posal forms for the purposes of bidding, shall be 
confidential and not disclosed until after the open- 
ing of bids. 

fb) This information shall be furnished to the 
Federal Highway Administration in accordance 
with written rules, regulations, policies and proce- 
dures of the Federal Highway Administration. 

(c) As an exception to the confidentiality rule 
provided for in Paragraph (a) of this Rule, the list 
of plan holders or potential bidders will be made 
public in accordance with the following criteria: 
The plan holder list shall be made public by the 
Proposal and Contract Section of the Highway 
Design Branch through the Department's Support- 
ive Service Contractor and other agents so desig- 
nated by the State Highway Engineer-Design. The 
list shall be issued in writing twice between the 



1114 



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PROPOSED RULES 



Date of Advertisement and the Date of Bid Open- 
ing. Each potential bidder who obtains a set of 
plans/proposals for a project shall be given the 
option of having his name remain confidential. 
pursuant to the following criteria for cither Sub 
paragraph (1) or (2) of thi s Paragraph: 

{4-) The li s t shall be made public on those 

project s determined by the State High 
way Engineer Design to be of a s pecial 
nature on which the work is not routine 
highway work or a major portion of the 
work will mo 9 t likely be done by spc 
oialty contractor/subcontractors. 

(3) The list of potential bidder s s hall be 

released — on the project s — m — which — a 
pre bid conference is held. — The li s t of 
potential bidders will be made available 
from the Proposals and Contracts Sec 
tion of the Highway Design Branch one 
week — prior to — the opening — of bids. 
Each potential bidder that obtains a s et 
of plans/proposal s for a project will be 
given the option of having its name 
remain confidential. 



Statutory Authority G.S. 133-33. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 17 - BOARD OF 
DIETETICS/NUTRITION 

[Sotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Dietetics /Nutrition intends to amend rules cited as 
21 NCAC 17 .0107, .0109, .0113; adopt .0201 - 
.0203. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 7, 1994 at the Kresge Auditori- 
um, Cate Center, Meredith College, 3800 
Hillsborough Street, Raleigh, North Carolina. 

Keason for Proposed Action: 

21 NCAC 17 .0107, .0109 & .0113 - To amend 

rules governing provisional license, issuance and 

renewal of license, and fees. 

21 NCAC 17 .0201 - .0203 - To adopt rules 



governing review and approval of weight control 
services. 

(comment Procedures: Requests to make oral 
comments at the hearing must be received by the 
Board no later than 5:00 p.m. on October 31, 
1994; written comments must be received by the 
Board no later than 5:00 p.m. on November 14, 
1994. Comments should be limited to 10 minutes. 
Requests and comments should be addressed to the 
Executive Secretary, North Carolina Board of 
Dietetics/Nutrition, 1418 Aversboro Road, Garner, 
North Carolina 27529. 

SECTION .0100 - LICENSURE 

.0107 v0007PROVISIONAL LICENSE 

(a) Applicants shall provide evidence of com- 
pleting academic requirements by: 

(1) Submitting official transcripts and a 
verification statement which includes 
the original signature of the Program 
Director of a college or university in 
which the course of study has been 
approved as meeting the current knowl- 
edge requirements of the ADA; or 

(2) Requesting, completing and submitting 
documents for the evaluation of an 
equivalent major course of study as 
referenced in 21 NCAC 17 .0003 and 
submitting official transcripts from all 
colleges attended. 

(b) Applicants shall provide evidence of com- 
pleting supervised practice requirements by: 

(1) Submitting a verification statement 
which includes the original signature of 
the Program Director or Sponsor of a 
supervised practice program or plan 
which has been approved/accredited to 
meet the dietetic practice requirements 
of ADA; or 

(2) Requesting, completing and submitting 
documents for the evaluation of the 
supervised practice experience as refer- 
enced in 21 NCAC 17 .0003. 

(c) Applicants shall provide evidence of making 
application to take the examination. 

(d) Provisional license may be issued for a 
period not exceeding one year and may be re- 
newed from year to year for a period not to exceed 
five three years upon completion of the following: 

(1) payment of annual fees T i 

(2) submission of completed application as 
prescribed by the BoaroVand j 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1115 



PROPOSED RULES 



(3) provision of documentation of having 
completed 15 hours of continuing edu- 
cation approved by the Board for a one 
year period; 

(4) provision of evidence of making appli- 
cation to retake the examination; 

(5) provision of evidence of being under 
the direct supervision of licensed dieti- 
tian(s)/nutritionist(s) , 

(e) Provisional licensed dietitian/nutritionist shall 
be under the direct supervision of licensed dicti 
tian s /nutritionists dietitian(s)/nutritionist(s) as 
defined in 21 NCAC 17 .0015(b) for at least 70 
percent of the hours employed. 

(f) Following the successful completion of the 
licensing examination, the provisionally licensed 
dietitian/nutritionist shall remit completed applica- 
tion for upgrading license, payment of fees, and 
evidence of passing examination referenced in 21 
NCAC 17 .0005. 

(g) The Board will revoke a provisional license 
if the applicant fails to apply for the examination 
for licensure in a timely manner or does not take 
the examination. 

Statutory Authority G.S. 90-356; 90-361. 

.0109 t£009ISSUANCE AND RENEWAL OF 
LICENSE 

(a) An applicant may be issued a license based 
on compliance with requirements stated in G.S. 
90-357 and these Rules. The Board shall issue a 
license to any person who meets the requirements 
upon payment of the license fee prescribed. The 
Executive Secretary shall send each licensee whose 
credentials have been approved a license. 

(b) Licensee shall notify the Board of any 
change in the licensee's personal or professional 
address within 30 days of that change. 

(c) Licenses will expire on March 31 of every 
year. Beginning in 1993, the licenses shall be 
issued for a period of one year beginning April 1 
and ending March 31. 

(d) At least 30 days prior to the expiration date 
of the license, the licensee shall be sent written 
notice of the amount of renewal fee due, and a 
license renewal form which must be returned with 
the required fee. 

(e) Licensee's renewal application must be 
postmarked prior to the expiration date in order to 
avoid the late renewal fee. Failure to receive 
renewal notice shall not be justification for late 
renewal . 

(f) The Board shall not renew the license of a 
person who is in violation of the Act, or Board 



rules at the time of application for renewal. 

(g) Applicants for renewal of licenses must 
provide documentation of having met continuing 
education requirements by submitting either : 

(1) Evidence of maintaining certification as 
a Registered Dietitian by the Commis- 
sion on Dietetic Registration; A copy 
of the current CDR registration card 
certifying completion of 30 hour s of 
continuing education approved by the 
CDR for a two year period ending 
August 31; or 

(2) A Summary of Continuing Education 
on the form prescribed by the Board 
documenting completion of 30 hours of 
continuing education approved by the 
Board for a two year period ending 
August 31 . 

(h) A renewal license shall be furnished to each 
licensee who meets all renewal requirements by 
the expiration date. 

(i) The Board may provide for the late renewal of 
a license upon the payment of a late fee within 60 
days of the expiration date of March 31. If the 
license has been expired for 60 days or less, the 
license may be renewed by returning the license 
renewal form with all appropriate fees and docu- 
mentation to the Board, postmarked on or before 
the end of the 60-day grace period. 

Statutory Authority G.S. 90-356; 90-362; 90-363. 



1116 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



.0113 ^W3FEES 

In accordance with the provisions of the Act, the following fees, where applicable, are payable to the Board 
by check or money order. Fees are nonrefundable, except for the Issuance Fee, if application is not approved. 

Application Fee $ 25.00 

Charter Issuance Fee (Paid by July 1, 1992) 45.00 

Issuance Fee 75.00 

License Renewal Fee 25.00 

Late Renewal Fee 50.00 

Examination Fee 100.00 

Provisional License Fee 35.00 

Duplicate License Certificate Fee 15.00 

Duplicate License Identification Card Fee 10.00 

Returned Check Fee 15.00 

Service Fee for Academic Program Approval by Board 50.00 

Service Fee for Supervised Practice Program Approval by Board 75.00 

Service Fee for Approval of License Requirements of Another State, 50.00 

Political Territory or Jurisdiction as Equivalent 

Service Fee for Prior Approval by Board for Continuing Educational Programs 25.00 

Service Fee for Annual Continuing Education Approval by Board for Licensee 25.00 
Service Fee for Weight Control Program or Service Review and Action by Board 200.00 



Statutory Authority G.S. 90-356(9); 90-364. 



SECTION .0200 - REVIEW AND 

APPROVAL OF WEIGHT 

CONTROL SERVICES 

.0201 DEFINITIONS 

As used in this Section, the following terms and 
phrases, which have not already been defined in 
the Practice Act, G.S. 90-350 through 90-369, 
shall have the meanings specified: 

(1) A "weight control program or service" 
means a program or service designed for 
one or more population groups to achieve 
and/or maintain a healthy weight; 

(2) "Reviewer" means a person certified by 
the Board who shall: 

be a dietitian/nutritionist 



(a) be a 



currently 



licensed and in good standing according 
to G.S. 90, Article 25; 

(b) meet certification requirements ap- 
proved by the Board; 

(c) perform duties in compliance with G.S. 
90, Article 25 and the rules of the 
Board; and 

(d) review weight control programs to 
determine compliance with G.S. 90, 
Article 25 and the rules of the Board. 

Statutory Authority G.S. 90-356; 90-368. 

.0202 REQUIREMENT FOR REVIEW 
AND APPROVAL 



A person who directly provides a weight control 
program or service shall not be affected by the 
requirements of G.S. 90, Article 25 provided that: 

(1) The person does not hold himself/herself 
out to be a dietitian or nutritionist or 
imply orally or in writing or indicate in 
any way that he/she is a dietitian or 
/nutritionist; and 

(2) The program is reviewed by a 
dietitian/nutritionist duly licensed accord- 
ing to G.S. 90, Article 25 and certified 
by the Board as a reviewer; and 

(3) Changes to the nutrition component of 
the program are not initiated without 
prior approval of a dietitian/nutritionist 
duly licensed according to G.S. 90, 
Article 25 and certified by the Board as 
a reviewer; and 

(4) Consultation is available for the person 
from a dietitian/nutritionist duly licensed 
according to G.S. 90, Article 25. If the 
consultation is provided out-of-state, k is 
available for the person from a 
dietitian/nutritionist duly licensed in 
another state that has licensure require- 
ments that the Board approves as equiva- 
lent to those of this state or a dietitian 
registered by the CDR of the ADA; and 

(5) The person presenting the program fol- 
lows the program that is reviewed. 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1117 



PROPOSED RULES 



Statutory Authority' G. S. 90-356; 90-368. 

.0203 REVIEW AND BOARD ACTION 

(a) The review shall consist of an assessment 
and a recommendation to the Board for Board 
approval or denial. 

(1) The review of the program shall: 

(A) be completed annually, occur at the 
location of the weight control 
program and include the requirements 
set forth in the "North Carolina 
Weight Control Services Guidelines 
on Nutrition" dated September 1994 
and incorporated herein by reference 
including any subsequent amendments 
and editions. Copies of this standard 
may be purchased for twenty-five 
dollars and fifty cents ($25.50) plus 
shipping and handling from the Office 
of the Executive Secretary. The 
requirements shall include but need 
not be limited to the following: 

(i) appropriateness of screening 
process; 

(ii) appropriateness of weight control 
food plan, supplements, food, 
and/or food products for 
program's clients/groups; 

(iii) assurance of nutritional adequacy; 

(iv) appropriateness of materials, 
which include but are not limited 
to written nutrition education 
handouts, recorded education 
materials, lesson or instructional 
plans, food plans and screening 
tools; 
(v) appropriateness of rate of weight 
change promoted; 

(vi) provision and appropriateness of 
maintenance or follow up 
program; and 

(B) be delivered by personal service to 
the authorized person(s) at the weight 
control program for signature 
indicating that the review and 
recommendation had been received 
and read; and 

(C) be submitted in writing to the Board 
by certified mail postmarked no later 
than five work days after the date of 
the review on a Board review form. 
The form shall provide for but need 
not be limited to the following 
information: 

£i} legal name and mailing address of 



the program; 
(ii) name of person to whom review 

results are issued; 
(iii) ownership disclosure; 
(iv) location of program: 
(v) list of person(s) exempt from G.S. 

90. Article 25; 
(vi) date of review; 
(vii) recommendation for Board 

approval or denial; 
(viii) original signature and license 
number of Licensed 
Dietitian/Nutritionist performing 
the review; 
(ix) response to review by authorized 
person(s) from the weight control 
program; 
(x) original signature(s) of authorized 
person(s) from the weight control 
program indicating that the 
recommendation had been 
received and read; and 
(xi) Board action for approval or 
denial; 
response to the review, which may 
filed by the authorized person(s) 
from the weight control program, shall 
be submitted in writing to the Board by 
certified mail postmarked no later than 
10 days after the date of the review and 



121 A 
be 



shall be documented on a Board review 
form. 



(b) Only one approval card shall be issued to 
each weight control program site upon verification 
that the person(s) providing the program are in 
compliance with applicable laws and rules. The 
Board approval card shall be posted in a 
conspicuous place where it may be readily 
observed by the public upon entering the premises 
of the program. The owner or director shall be 
responsible for keeping the card posted at the 
location agreed upon by the reviewer of the 
program. Any approval card issued by the Board 



shall remain the property of the Board and shall be 

surrendered to the Board on demand, 
(c) The written review of the weight control 

service shall be accessible to the public during 

normal business hours for inspection upon request. 

The program shall have reasonable opportunity to 

ensure that none of the following information will 

be disclosed during the inspection: 

(1) information on the client health 
screening or the physician release forms 
including but not limited to diagnosis, 
prognosis or treatment of a named 



1118 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



person, unless that person consents in 
writing to the disclosure; or 
(2) any confidential medical information 
under G.S. $± Article 53 regarding a 
named person, unless that person 
consents in writing to the disclosure. 

(d) Upon a finding that the person does not 
comply with G.S. 90, Article 25 or the rules, the 
person(s) authorized by the weight control program 
shall have 60 days from the date of receipt of 
denial from the Board to: 

(1) remedy any noted deficiencies such that 
the program meets the minimal nutri- 
tion standards as referenced in "North 
Carolina Weight Control Services Nu- 
trition Guidelines"; and 

(2) have a second review by a certified 
reviewer as defined in 2J_ NCAC 17 
.0201(2). 

(e) After three reviews in which approval is 
denied, or a maximum of 120 days of providing 
the weight control services without filed official 
approval from the Board, the person(s) who is (are) 
providing the weight control services shall be in 
violation of G.S. 90. Article 25. 

(f) The approval from the Board shall remain in 
effect for 12 months unless any of the following 
occurs at which time the program shall be re- 
viewed: 

(1) change of ownership; 

(2) change in program; 

(3) termination of business operations; 

(4) failure to comply with G.S. 90, Article 
25 or the rules of the Board. 

(g) The weight control program shall be re- 
viewed and approved by the expiration date on the 
approval card. 

(h) The Board shall be notified in writing within 
30 days after the occurrence of any of the follow- 
ing circumstances: 

(1) change in name; 

(2) change in mailing address; 

(3) change in manager, administrator or 
director of program; 

(4) change in ownership; 

(5) change in location; 

(6) change in person(s) exempt from G.S. 
90, Article 25; 

(7) change in program; or 

(8) cessation of business operations for any 
other reason. 

(i) Weight control programs currently in opera- 
tion as of the effective date of this rule shall be 
reviewed and approved no later than January 31, 
1996. After January 31, 1996, weight control 



programs shall be reviewed and approved within 
120 days of starting to provide the weight control 
service. 

Statutory Authority G.S. 90-356; 90-368. 

CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to amend rule 
cited as 21 NCAC 32B .0305. 

1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 1:00 
p.m. on October 31 , 1994 at the Medical Board 
Office, 1203 Front Street, Raleigh, NC 27609. 

Reason for Proposed Action: To recognize the 
validity of Part I of the National Board of Osteo- 
pathic Examiners if taken after January 1, 1987. 

(comment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 
the hearing should be directed to: Administrative 
Procedures, Medical Board, P.O. Box 20007, 
Raleigh, NC 27619, no later than November 14, 
1994. 

SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

SECTION .0300 - LICENSE BY 
ENDORSEMENT 

.0305 EXAMINATION BASIS FOR 
ENDORSEMENT 

(a) To be eligible for license by endorsement of 
credentials, graduates of medical schools approved 
by the LCME or AOA must supply certification of 
passing scores on one of the following written 
examinations: 

(1) National Board of Medical Examiners; 

(2) FLEX - under Rule .0314 of this Sec- 
tion; 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1119 



PROPOSED RULES 



(3) Written examination administered by an 
allopathic or composite state medical 
board which issued the original license 
on the basis of written examination 
other than FLEX; 

(4) National Board of Osteopathic Examin- 
ers, Part 1 taken after January l_i 1987 
and all parts Parts 2 & 3 taken after 
January 1, 1990; or 

(5) USMLE - Step 1, Step 2, Step 3 of 
USMLE or a combination of examina- 
tions as set out in Rule .0215 of this 
Subchapter. 

(b) Graduates of medical schools not approved 
by LCME or AOA, must supply certification of 
passing scores on one of the following written 
examinations: 

(1) FLEX - under Rule .0314 of this Sec- 
tion; 

(2) Written examination other than FLEX 
from the state board which issued the 
applicant's original license by written 
examination together with American 
Specialty Board certification; or 

(3) USMLE - Step 1, Step 2, Step 3 of the 
USMLE or a combination of examina- 
tions as set out in Rule .0215(c) of this 
Subchapter. 

(c) A physician who has a valid and unrestricted 
license to practice medicine in another state, based 
on a written examination testing general medical 
knowledge, and who within the past five years has 
become, and is at the time of application, certified 
or recertified by an American Specialty Board, is 
eligible for license by endorsement. 

(d) Applicants for license by endorsement of 
credentials with FLEX scores that do not meet the 
requirements of Rule .0314 of this Section must 
meet the requirements of Paragraph (c) in this 
Rule. 

Statutory Authority G.S. 90-10; 90-13. 

CHAPTER 34 - BOARD OF 
MORTUARY SCIENCE 

i\ otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Mortuary Science intends to amend rules cited as 
21 NCAC 34C .0203 - .0204 and .0301. 



1 he proposed effective date of this action is 
January 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on November 15, 1994 at the Conference 
Room, 801 Hillsborough Street, Suite 405, Ra- 
leigh, NC 27603. 

Keason for Proposed Action: 

21 NCAC 34C .0203 - To require that pulverized 
cremated remains shall be placed in closed con- 
tainers. 

21 NCAC 34C .0204 - To provide that cremation 
containers shall be rigid and not necessarily 
entirely combustible. 

21 NCAC 34C .0301 - To require that the crema- 
tory be informed of the party who will accept the 
cremated remains or that the information is un- 
known. 

Lsomment Procedures: Interested persons may 
present statements, orally and in writing, at the 
public hearing and in writing prior to the hearing 
by mail addressed to the NC Board of Mortuary 
Science, P.O. Box 27368, Raleigh, NC 27611- 
7368. 

SUBCHAPTER 34C - CREMATORIES 

SECTION .0200 - EQUIPMENT 
AND PROCESSING 

.0203 PULVERIZATION 

Unless otherwise directed by the authorizing 
agent, cremated remains recovered after cremation 
shall be pulverized in the processor required by 
Rule .0201 of this Section, and the cremated 
remains shall then be immediately placed in a 
temporary closed container or in an urn or other 
permanent closed container. 



Statutory Authority G.S. 
90-210. 45(e); 90-210. 50(a). 



90-210.41(9); 



.0204 CREMATION CONTAT^fERS 

Cremation containers shall be closed, rigid and 
leak resistant and mad e e ntir e ly of combustible 
material s. A cask e t shall not b e requir e d as a 
or e mation oontniner. 

Statutory Authority G.S. 90-210.41(8); 90-210. 50(a). 



1120 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



PROPOSED RULES 



SECTION .0300 - AUTHORIZATIONS, 
REPORTS, RECORDS 

.0301 AUTHORIZATION TO CREMATE 

(a) No human remains shall be cremated before 
the crematory operator receives a written statement 
signed by an authorizing agent, containing the 
following: 

(1) Express authorization to crematev m x 

{3} Name of person who will accept the 

cremated remain s . 

(2) (3) The Ultimate ultimate disposition of 
the cremated remains, if knownT i 

(3) The name of the party who will accept 
the cremated remains if known; and 

(4) A declaration that the information 
requested in Subparagraph (a)(2) or (3) 
of this Rule is unknown at this time if 
such is the case . 

(b) The crematory operator shall retain the 
statement and shall make it available to the Board 
or its agents upon request. 

Statutory Authority G.S. 90-210.44; 
90-210. 46(a) , (e); 90-210. 50(a). 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1121 

J 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
150B-21.9(a). State agencies are required to respond to RRC as provided in G. S. 150B-21. 12(a). 



AGRICULTURE 

Plant Industry 

2 NCAC 48E .0302 - General Permits 

Rule Returned to Agency for Failure to Comply with G.S. 150B-21.9(a) & 150B-21.2(f) 

COMMERCE 

Alcoholic Beverage Control Commission 

4 NCAC 2T .0103 - Beer Franchise Law; "Brand" Defined 
Energy 



09/15/94 



4 NCAC 12C .0007- Institutional Conservation Program 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Health: Epidemiology 

15A NCAC 19A .0101 - Reportable Diseases and Conditions 

Agency Rexised Rule 
15A NCAC 19A .0102 - Method of Reporting 

Agency Revised Rule 
15A NCAC 19C .0602 - Accreditation 

Agency Revised Rule 

Mining: Mineral Resources 

15A NCAC 5B .0013 - Response Deadline to Department's Request(s) 

Wildlife Resources and Water Safety 

ISA NCAC 101 .0001 - Definitions and Procedures 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

HUMAN RESOURCES 

Vocational Rehabilitation Services 

10 NCAC 20C .0203 - Determination of Order of Selection Priority Category 

Agency Revised Rule 
10 NCAC 20C .0316- Other Goods and Services 



RRC Objection 09/15/94 



RRC Objection 
Eff. 



06/16/94 
07/14/94 
08/16/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



09/15/94 
09/15/94 
09/15/94 
09/15/94 
09/15/94 
09/15/94 



RRC Objection 09/15/94 



RRC Objection 
Obj. Contd 

Eff. 



08/18/94 
09/15/94 
10/01/94 



RRC Objection 
Obj. Removed 
RRC Objection 



09/15/94 
09/15/94 
09/15/94 



1122 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



RRC OBJECTIONS 



Agency Revised Rule 

JUSTICE 

Criminal Justice Education and Training Standards 

12 NCAC 9B .0208 - Basic Training - Probation/Parole Officers 

LICENSING BOARDS AND COMMISSIONS 

Physical Therapy Examiners 

21 NCAC 48F .0002 - Fees 
Agency Revised Rule 

Therapeutic Recreation Certification 

21 NCAC 65 .0004 - Academic - TRS Examination 
Agency Revised Rule 



Obj. Removed 09/15/94 



RRC Objection 07/14/94 



RRC Objection 09/15/94 
Obj. Removed 09/15/94 



RRC Objection 08/18/94 
Obj. Removed 09/15/94 



TRANSPORTATION 
Division of Motor Vehicles 

19A NCAC 3D .0519 - Stations 

Agency Revised Rule 
19A NCAC 3D .0520 - Inspection Station Personnel 

Rule Withdrawn by Agency 
19A NCAC 3D .0522 - Licensing Requirements 

Agency Revised Rule 
19A NCAC 3D .0523 - Denial, Suspension or Revocation of Licenses 

Agency Revised Rule 
19A NCAC 3D .0524 - Operation of Safety /Exhaust Emissions Inspection Stations 

Agency Revised Rule 
19A NCAC 3D .0532 - Reinspection 

Agency Revised Rule 
19A NCAC 3D .0533 - Brakes 

Agency Revised Rule 
19A NCAC 3D .0534 - Lights 

Agency Revised Rule 
19A NCAC 3D .0544 - Inspection Procedure for Emissions Equipment 

Agency Revised Rule 
19 A NCAC 3D .0549 - Operation to Replace Windshield Inspection Stickers 

Agency Revised Rule 
19A NCAC 3D .0550 - Recognition of Safety Inspections Issued by Certain Other 

Rule Withdrawn by Agency 
19A NCAC 3D .0551 - Approval and Disapproval of Vehicles 

Agency Revised Rule 



RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 




09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 


Jurisdictions 






09/15/94 


RRC Objection 


09/15/94 


Obj. Removed 


09/15/94 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1123 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



A1J 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 



North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



94 DOA 0242 



West 



04/13/94 



Jerry Lee McGowan v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Alcoholic Beverage Control Comm. v. Daehae Chang 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Lynn Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limite, Inc. 
Alcoholic Beverage Control Comm. v. COLAP Enterprises, Inc. 
Alcoholic Beverage Control Comm. v. Mitch's Tavern, Inc. 
Alcoholic Beverage Control Comm. v. Ms. Lucy Jarrell PDwell 
Alcoholic Beverage Control Comm. v. Daphne Ann Harrell 
Mr. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
Jerome Crawford v. Alcoholic Beverage Control Commission 
Lawrence Mungin v. Alcoholic Beverage Control Commission 
Willie I\>ole Jr. v. Alcoholic Beverage Control Commission 
Alonza Mitchell v. Alcoholic Beverage Control Commission 
Roy Dale Cagle v. Alcoholic Beverage Control Commission 
Christopher C. Gause, James A Jinwright v. Alcoholic Bev. Ctl. Comm. 

COMMERCE 



93 ABC 0363 


Morrison 


08/23/94 


93 ABC 0719 


Gray 


03/02/94 


93 ABC 0775 


Morrison 


09/21/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0892 


Morgan 


06/03/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 0993 


Morgan 


06/03/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1481 


Gray 


07/19/94 


93 ABC 1485 


Mann 


03/11/94 


94 ABC 0060 


Nesnow 


06/07/94 


94 ABC 0064 


Gray 


07/26/94 


94 ABC 0070 


Morgan 


06/06/94 


94 ABC 0115 


Nesnow 


07/18/94 


94 ABC 0124 


Morgan 


06/06/94 


94 ABC 0125 


Morgan 


06/06/94 


94 ABC 0149 


Chess 


08/08/94 


94 ABC 0232 


Chess 


09/02/94 


94 ABC 0257 


Morrison 


07/28/94 


94 ABC 0260 


West 


07/13/94 


94 ABC 0532 


Gray 


09/27/94 



9:11 NCR 



870 



Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 



93 COM 1622 Chess 



94 DOC 0252 



03/01/94 



Morrison 03/21/94 



Joseph Guernsey & Parents, Robert Guernsey & Dolores Guernsey 
v. Pitt County Hospital Eastern Radiologists 

Crime Victims Compensation Commission 

Mae H. McMillan v. Crime Victims Compensation Commission 
James Hugh Baynes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 



94CPS 0413 



92 CPS 1328 

93 CPS 0801 
93 CPS 1104 



Gray 07/11/94 



Morgan 08/11/94 

West 03/28/94 

West 04/21/94 



9:2 NCR 



114 



1124 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



James A. Canady v. Crime Victims Compensation Commission 

Virginia Roof v. Department of Crime Control & Public Safety 

Karen C. Tilghman v. Crime Victims Compensation Commission 

Rosemary Taylor v. Crime Victims Compensation Commission 

Violet E. Kline v. Crime Victims Compensation Commission 

James Benton v. Crime Victims Compensation Commission 

Percy Clark v. Crime Victims Compensation Commission 

J. Richard Spencer v. Crime Victims Compensation Commission 

Albert H. Walker v. Crime Victims Compensation Commission 

Barbara Henderson v. Crime Victims Compensation Commission. 

Shirley Handsome v. Crime Victims Compensation Commission 

Georgeann \bung v. Crime Victims Compensation Commission 

Lawrence L. Tyson v. Crime Victims Compensation Commission 

Ada Battle v. Crime Victims Compensation Commission 

Lyman L. Chapman v. Crime Victims Compensation Commission 

Douglas and Virginia Wilson v. Crime Victims Compensation Comm. 

Michelle L. Wilcox v. Crime Victims Compensation Commission 

Charlie E. McDonald v. Crime Victims Compensation Commission 

Michael G. Low v. Crime Victims Compensation Commission 

Maureen P. Wilson v. Crime Victims Compensation Commission 

Kay Thompson Chambers v. Crime Victims Compensation Commission 

James R. Gray v. Crime Victims Compensation Commission 

Hazel Jarvis v. Victims Compensation Commission 

Pattie Hale v. Victims Compensation Fund 

Dana Harris v. Crime Victims Compensation Commission 

Mary E. Haskins v. Crime Victims Compensation Commission 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93 CPS 1108 


Gray 


03/28/94 




93 CPS 1347 


Nesnow 


03/24/94 




93 CPS 1608 


Reilly 


05/17/94 


9:6 NCR 407 


93 CPS 1626 


Nesnow 


05/25/94 




93 CPS 1670 


Morgan 


06/13/94 




94 CPS 0034 


Chess 


06/14/94 




94 CPS 0127 


Rcilly 


04/19/94 




94 CPS 0157 


Chess 


06/14/94 




94 CPS 0229 


Reilly 


08/11/94 




94 CPS 0259 


Morrison 


04/07/94 




94 CPS 0286 


Gray 


04/28/94 




94 CPS 0292 


Reilly 


04/18/94 




94 CPS 0368 


Gray 


04/26/94 




94 CPS 0414 


Reilly 


08/23/94 




94 CPS 0415 


Chess 


06/02/94 




94 CPS 0417 


Reilly 


06/07/94 




94 CPS 0467 


Reilly 


06/07/94 




94 CPS 0468 


Gray 


09/02/94 


9:13 NCR 1056 


94 CPS 0524 


Morrison 


06/13/94 




94 CPS 0567 


Gray 


09/23/94 




94 CPS 0581 


Morrison 


09/28/94 




94 CPS 0603 


Reilly 


08/19/94 




94 CPS 0664 


Chess 


07/29/94 




94 CPS 0734 


West 


09/06/94 




94 CPS 0832 


Nesnow 


09/26/94 




94 CPS 1406 


Gray 


03/17/94 





EMPLOYMENT SECURITY COMMISSION 



David Lee Bush v. Employment Security Commission 
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



91 ESC 0395 Reilly 



08/18/94 



Bobby Stallings v. Environment, Health, and Natural Resources 

James M. Lyles v. Brunswick County Office of Permits 

William P. Shaver, R. McKinnon Morrison UJ, Jill Ray, Dr. Wesley 

C. Ray, Douglas W. Furr, Catherine H. Furr & Caldwell Creek Farm, Inc. 

v. EHNR-State of North Carolina 
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenburg Cty 
Camel D. Pearson Jr. v. Craven Co. Division of Health & DEHNR 
Patricia D. Solomon v. Macon County Health Department 
Elbert L. Winslow v. EHNR/Guilford Cty Health Dept. & Guilford Cty 

Planning & Zoning Board 
Kathryn A. Whitley v. Macon County Health Department 
Brook Hollow Estates v. Environment, Health, &. Natural Resources 
Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 
Sam's Club #8219 v. Mecklenburg County Health Department 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 
Joseph B. Leggett v. Environment, Health, &. Natural Resources 
Tri-Circuits, Inc. v. Environment, Health, & Natural Resources 
Irene, Will, Eric Litaker v. Montgomery County Health Department 



90 EHR 0612 


Morgan 


08/11/94 


92 EHR 0333 


Chess 


09/22/94 


93 EHR 0452 


Morgan 


08/11/94 


93 EHR 1017 


Bee ton 


05/31/94 


93 EHR 1759 


Mann 


09/06/94 


93 EHR 1777 


West 


05/23/94 


94 EHR 0086 


Chess 


07/13/94 


94 EHR 0088 


West 


07/13/94 


94 EHR 0093 


West 


06/03/94 


94 EHR 0210 


Chess 


06/21/94 


94 EHR 0329 


Nesnow 


06/15/94 


94 EHR 0500 


Gray 


06/10/94 


94 EHR 0560 


West 


09/21/94 


94 EHR 0601 


Morrison 


06/30/94 


94 EHR 0776 


Gray 


09/06/94 



9:7 NCR 



496 



Coastal Management 



Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Div. of Coastal Mgmt &. Environmental Mgmt 
John R. Hooper v. EHNR, Div./Coastal Mgmt &. Bird's Nest Partnership 
Gary E. Montalbine v. Division of Coastal Management 
Paley-Midgett Partnership v. Coastal Resources Commission 



89 EHR 1378 J 


Gray 


04/07/94 


90 EHR 0017* 


Gray 


04/07/94 


90 EHR 0455 


Morgan 


08/11/94 


93 EHR 1792 


Nesnow 


03/21/94 


94 EHR 0315 


Gray 


06/01/94 



Consolidated Cases. 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1125 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Health 



Jane C. O'Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

I^quotank-I^rquimans-Camden-Chowan 
Henry Lee Bulluck v. Nash County Health Department & EHNR 
Environment, Health, & Natural Res. v. Clark Harris Sl Jessie Lee Harris 
Richard E Ebetsold v. Jackson County Health Department Sl EHNR 
Sidney S. Tate Jr. v. Dept. of Environment, Health, Si. Natural Resources 
George A Waugh, Shirley A. Waugh v. Carteret Cty Health &. Env. Hlth 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
H.A. Lentz v. Department of Environment, Health, & Natural Resources 
Floyd Benn Williams v. Dept. of Environment, Health, Si. Nat. Res. 

Environmental Management 

David Springer v. Dept. of Environment, Health, Si. Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 
Wooten Oil Company v. EHNR, Div of Environmental Management 
John G. Owens & J.B.S. Mechanical Svcs, Inc. v. EHNR, Env. Mgmt. 



91 EHR 0838 


Bee loo 


04/06/94 


93 EHR 0348 


Morgan 


07/22/94 


93 EHR 0924 


Bee ton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0128 


Chess 


07/13/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 


94 EHR 0001 


West 


09/30/94 


94 EHR 0024 


Mann 


09/07/94 



Land Resources 



Wallace B. Clayton, Dr. Marshall Redding v. Div. of Land Resources 
Town of KernetFville (LQS 93-053) v. Environment, Health, & Nat. Res. 
Royce Perry, Paul Perry v. Dept. of Environment, Health, & Natural Res. 



93 EHR 1407 


Morgan 


08/09/94 


93 EHR 1781 


Chess 


06/29/94 


94 EHR 0525 


Gray 


07/01/94 



9:8 NCR 



581 



Marine Fisheries 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 

Larry J. Batson v. Division of Marine Fisheries 

David W. Oglesby v. Division of Marine Fisheries 

David E. Oglesby v. Division of Marine Fisheries 

James Goodman v. EHNR, Division of Marine Fisheries 

Billy Ervin Burton v. Division of Marine Fisheries 



93 EHR 0394 


Gray 


04/11/94 






93 EHR 0857 


Morgan 


07/22/94 






93 EHR 0930* 3 


West 


07/25/94 


9:10 NCR 


758 


93 EHR 0931* 


West 


07/25/94 


9:10 NCR 


758 


94 EHR 0035 


Nesnow 


07/18/94 


9:9 NCR 


660 


94 EHR 0504 


Nesnow 


09/01/94 







Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 0951 Gray 03/28/94 

Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 93 EHR 1045 Morrison 04/06/94 

Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 

Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 

Division, and East Carolina Environmental, Inc., Addington Environmental, 

Inc., et al. 
Bobby Benton v. EHNR & Division of Solid Waste 94 EHR 0442 Gray 08/22/94 



9:3 NCR 214 



HUMAN RESOURCES 



Jerome Triplin v. Department of Human Resources 

Helen J. Walls, Walls Young World v. Department of Human Resources 

Brenda C. Robinson v. Department of Human Resources 

Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section 
Jachell D. Parker v. Department of Human Resources 
Earleen G. Tinsley v. Department of Human Resources 



93 DHR 0108 


Reilly 


08/19/94 


93 DHR 0965 


Morgan 


08/11/94 


94 DHR 0365 


West 


06/01/94 


94 DHR 0501 


Morrison 


06/02/94 



93 DCS 0969 


Morgan 


08/02/94 


93 DCS 0371 


Morgan 


07/14/94 


94 DCS 0651 


Nesnow 


09/15/94 



Division of Child Development 

Judith Fridley v. Div. of Child Development/ Abuse /Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Laureen Holt, ID#26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scott's Loving Day Care & Nursery, Mrs. Willie L. Scott v. DHR 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Bee ton 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 



1126 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Belinda K. Mitchell v. Human Resources, Div. of Child Development 
Living Woni Day Care, Jonathan Lankford v. Dept. of Human Resources 
David G. Whitted, Pres., Toddlera Academy, Inc. v. Div of Child Dev. 

Facility Services 

Laura Harvey Williams v. DHR, Division of Facility Services 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Judy Hoben Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Willie J. McCombs v. Human Resources, Div. of Facility Services 

Mr. & Mrs. Alvin Wilson v. DHR, Division of Facility Services 

Certificate of Need Section 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. 

Department of Human Resources, and Wilmington Perfusion 

Corp. and Howard F. Marks, Jr., M.D. 
Cape Fear Memorial Hospital v. Department of Human Resources 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 
N.R. by & through her agt & personal rep E.C.J, v. DHR, Medical Assis. 
David Yott v. Department of Human Resources 

Sampson County Memorial Hospital v. DHR, Div of Medical Assistance 
Division of Medical Assistance v. Catawba Cty Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Assis. 

Division of Social Services 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


94 DHR 0119 


Rcilly 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 


94 DHR 0453 


Mann 


09/23/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 DHR 0391 


Morgan 


08/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 


94 DHR 0430 


Gray 


09/29/94 


94 DHR 0559 


Chess 


08/25/94 



93 DHR 0746 Morgan 04/11/94 



93 DHR 1552 Reilly 08/15/94 

94 DHR 0197** Morgan 08/11/94 



94 DHR 0198* Morgan 08/11/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 0538 


Chess 


07/01/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1760 


West 


09/07/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Harrell v. Department of Social Services 

Child Support Enforcement Section 

Alfred Bennett v. Department of Human Resources 
Shelton Staples v. Department of Human Resources 
Helen Lee Harvell Jones v. Department of Human Resources 
Dalton Felton Sr. v. Department of Human Resources 
Colby S. Hughes v. Department of Human Resources 
Gary Eugene Honeycutt v. Department of Human Resources 
Vicki C. Conn v. Department of Human Resources 
Melvin L. Miller Sr. v. Department of Human Resources 
Robert L. Hicks v. Department of Human Resources 
Darryl D. Leedy v. Department of Human Resources 
William Heckstall v. Department of Human Resources 
Luther Hatcher v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Anthony E. Bullard v. Department of Human Resources 
Donald E. Height v. Department of Human Resources 
Dexter L. Chambers v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Roger Moore v. Department of Human Resources 
Alvin Lee Martin v. Department of Human Resources 
Robert Young v. Department of Human Resources 
Henry M. Dillard v. Department of Human Resources 
Vernon Byrd v. Department of Human Resources 
Antonio Townsend v. Department of Human Resources 
Keith M. Gray v. Department of Human Resources 
Troy E. Pinkney v. Department of Human Resources 
Anthony A. Macon v. Department of Human Resources 



94 DHR 0293 
94 DHR 0440 



Reilly 
Gray 



04/15/94 
06/27/94 



90CSE 1146 


Morgan 


08/11/94 


91 CSE0660 


Morgan 


08/11/94 


91 CSE 1183 


Morgan 


08/11/94 


92 CSE 0532 


Morgan 


07/13/94 


92 CSE 1199 


Morgan 


08/10/94 


92 CSE 1207 


Morgan 


08/10/94 


92 CSE 1268 


Morgan 


08/10/94 


92 CSE 1372 


Morgan 


08/10/94 


92 CSE 1591 


Morgan 


08/10/94 


93 CSE 0591 


Morgan 


08/11/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bee ton 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1 1 10 


Morgan 


08/11/94 


93 CSE 1124 


West 


03/28/94 


93 CSE 1125 


Bee ton 


03/30/94 


93 CSE 1127 


Bee ton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1135 


Nesnow 


06/13/94 


93 CSE 1136 


Becton 


08/22/94 


93 CSE 1139 


Bee ton 


03/30/94 


93 CSE 1140 


Neenow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1127 



CONTESTED CASE DECISIONS 



ACKNCY 



Walter Lee Corbett v. Department of Human Resources 

Joseph E. Kernstine v. Department of Human Resources 

Alvin M. Davis v. Department of Human Resources 

Thomas M. Birdwell III v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobfcy Lewis Smith v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 

Erie G. Sykes v. Department of Human Resources 

Morris Ray Bethel v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Edward Boggan v. Department of Human Resources 

Ernest N. Pruitt Jr. v. Department of Human Resources 

Michael P. McCay v. Department of Human Resources 

Robert Matthew Rossi v. Department of Human Resources 

BernadetE Cook v. Department of Human Resources 

Rawan Weigel v. Department of Human Resources 

Lem Person v. Department of Human Resources 

Bobfy Lee McCullera Jr. v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Glen Nelson Washington v. Department of Human Resources 

Michael V. Dockery v. Department of Human Resources 

Floyd E. Bailey v. Department of Human Resources 

Dennis W Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Mahalon Eugene White v. Department of Human Resources 

Marty Franzen v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

Gerald L. Murrell v. Department of Human Resources 

Larry D. Dawson v. Department of Human Resources 

McDaniel Teeter Jr. v. Department of Human Resources 

King D. Graham v. Department of Human Resources 

Derek Watson v. Department of Human Resources 

Luther Borden v. Department of Human Resources 

Walter B. Lester v. Department of Human Resources 

William K. Whisenant v. Department of Human Resources 

Curtis C. Osborne v. Department of Human Resources 

Stanley J. Forsack v. Department of Human Resources 

Larry Cornelius Smith v. Department of Human Resources 

Robert C. Lee Jr. v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

Michael A. Amos v. Department of Human Resources 

Benjamin McCormick v. Department of Human Resources 

Gregory N. Winley v. Department of Human Resources 

Ronald Brown v. Department of Human Resources 

Ronald Fred Metzger v. Department of Human Resources 

James L. Phillips v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Ricky Glenn Mabe v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

James W. Smith v. Department of Human Resources 

William A. Sellers v. Department of Human Resources 

Jerry Mclver v. Department of Human Resources 

Johnny B. Little v. Department of Human Resources 

Kenneth W Cooper v. Department of Human Resources 

Nathan D. Winston v. Department of Human Resources 

Bobby Charles Coleman v. Department of Human Resources 

Anthony Curry v. Department of Human Resources 

Charles W Norwood Jr. v. Department of Human Resources 

David L. Terry v. Department of Human Resources 

Audwin Lindsay v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1152 


Morgan 


08/04/94 


93 CSE 1155 


Morgan 


08/02/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1162 


Nesnow 


06/16/94 


93 CSE 1166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 


93 CSE 1181 


Bcclon 


04/20/94 


93 CSE 1188 


West 


07/11/94 


93 CSE 1191 


Bee ton 


05/09/94 


93 CSE 1192 


Chess 


09/01/94 


93 CSE 1197 


Nesnow 


06/28/94 


93 CSE 1198 


Morgan 


08/02/94 


93 CSE 1199 


Bee ton 


08/22/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1212 


Gray 


08/26/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1221 


Morgan 


08/02/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1261 


Nesnow 


08/22/94 


93 CSE 1264 


Morgan 


07/15/94 


93 CSE 1267 


Bee ton 


04/20/94 


93 CSE 1271 


Gray 


08/26/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


Bee ton 


05/18/94 


93 CSE 1283 


Reilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1291 


Bee ton 


08/22/94 


93 CSE 1299 


Gray 


09/19/94 


93 CSE 1301 


Morrison 


08/23/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1313 


Morgan 


08/02/94 


93 CSE 1316 


Bee ton 


06/14/94 


93 CSE 1318 


Bee ton 


06/29/94 


93 CSE 1323 


Mann 


09/26/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1356 


Mann 


09/26/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1358 


Gray 


08/26/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


West 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1368 


Morgan 


08/02/94 


93 CSE 1371 


Chess 


08/18/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 



PUBLISHED DECISION 
REGISTER CITATION 



1128 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



ACKNCY 



Kelvin Dean Jackson v. Department of Human Resources 
Jerry R. Gibson v. Department of Human Resources 
Melvin Lewis Griffin v. Department of Human Resources 
Dennis E. Fountain Jr. v. Department of Human Resources 
Mark E. Rogers v. Department of Human Resources 
Daniel J. McDowell v. Department of Human Resources 
Edna VonCannon v. Department of Human Resources 
Darron J. Roberts v. Department of Human Resources 
Ephrom Sparkman Jr. v. Department of Human Resources 
Thomas A. Ayere v. Department of Human Resources 
Daniel Thomas Hefele v. Department of Human Resources 
Gilbert J. Gutierrez v. Department of Human Resources 
Alton D. Johnson v. Department of Human Resources 
Darryl C. Thompson v. Department of Human Resources 
Jeffery E. Holley v. Department of Human Resources 
Chester SandeiB v. Department of Human Resources 
Rodney Guyton v. Department of Human Resources 
Nelson Bennett v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
Arthur Lee Carter v. Department of Human Resources 
Frank ReifF v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 
Robert Hayes v. Department of Human Resources 
Clark Anthony Bryant v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Edward Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 
Mickey Bridget! v. Department of Human Resources 
David Beduhn v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
Clarence J. Gatling Jr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Michael Edwin Smith v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
William Howard Wright v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Edward E. Furr v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
Vernon Lamont Weaver v. Department of Human Resources 
Jesse B. McAfee v. Department of Human Resources 
William Ellis v. Department of Human Resources 
Henry A. Harriel Jr. v. Department of Human Resources 
John H. Fortner Jr. v. Department of Human Resources 
Mike Johnson v. Department of Human Resources 
Carl E. Crump v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 
Dorsey L. Johnson v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
Gregory Harrell v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Gregory L. Rimmer v. Department of Human Resources 
Ruben Jonathan Bostillo v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Willie Hawkins v. Department of Human Resources 
B.A. Sellen v. Department of Human Resources 
Gary T. Hudson v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1394 


West 


06/13/94 


93 CSE 1411 


Nesnow 


08/24/94 


93 CSE 1412 


Morgan 


08/02/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1416 


Gray 


09/19/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1419 


West 


08/23/94 


93 CSE 1422 


Morgan 


08/04/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1436 


Reilly 


08/23/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1440 


Nesnow 


08/31/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1445 


Morgan 


08/10/94 


93 CSE 1448 


Bee ton 


08/22/94 


93 CSE 1452 


Chess 


05/16/94 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Bee ton 


05/24/94 


93 CSE 1494 


Gray 


08/30/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1499 


Morgan 


08/02/94 


93 CSE 1500 


Bee ton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1517 


Morrison 


08/26/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1522 


Reilly 


08/26/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1538 


Nesnow 


09/23/94 


93 CSE 1539 


Nesnow 


09/26/94 


93 CSE 1540 


Morgan 


08/02/94 


93 CSE 1541 


Morgan 


08/04/94 


93 CSE 1542 


Morgan 


08/02/94 


93 CSE 1544 


Morgan 


08/04/94 


93 CSE 1545 


Bee ton 


09/23/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1565 


Gray 


09/19/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1570 


Morrison 


08/26/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1573 


Reilly 


09/23/94 


93 CSE 1574 


Reilly 


09/01/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1585 


Morgan 


08/02/94 


93 CSE 1586 


Morgan 


08/02/94 


93 CSE 1590 


Bee ton 


09/23/94 


93 CSE 1591 


Bee ton 


04/20/94 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1129 



CONTESTED CASE DECISIONS 



AGENCY 



Johnny T. Usher v. Department of Human Resources 
Tim H. Maxwell v. Department of Human Resources 
Charles Darrcll Matthews v. Department of Human Resources 
John William Vance Jr. v. Department of Human Resources 
Bobby R. Sanders v. Department of Human Resources 
Michael S. Rhynes v. Department of Human Resources 
Denise L. Smith v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Jeffrey Alston v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. Parker v. Department of Human Resources 
Charles F. McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Richard Rachel v. Department of Human Resources 
Alan V. Teubert v. Department of Human Resources 
Henry L. Ward Jr. v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Earl Newkirk Jr. v. Department of Human Resources 
James Edward Penley v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Vernon Bullock v. Department of Human Resources 
Jessie Liles v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Royston D. Blandford IE v. Department of Human Resources 
Ronald Erwio Williams v. Department of Human Resources 
Michael L. Franks V. Department of Human Resources 
Donnie W. Craghead v. Department of Human Resources 
Billy D. Gibson v. Department of Human Resources 
Ronald Garrett v. Department of Human Resources 
Ervin C. Harvey v. Department of Human Resources 
Wanda Jean Lee Daniels v. Department of Human Resources 
Charles E. Colston v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Michael Lynn Jones v. Department of Human Resources 
Grayson Kelly Jones v. Department of Human Resources 
Larry Hayes v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 
Fred Thompson Jr. V. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Bee ton 


05/13/94 


93 CSE 1598 


Nesnow 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1603 


Chess 


08/18/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1634 


Morrison 


09/28/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesnow 


07/25/94 


93 CSE 1643 


Nesnow 


07/25/94 


93 CSE 1644 


Morgan 


08/02/94 


93 CSE 1645 


Morgan 


08/10/94 


93 CSE 1646 


Morgan 


08/02/94 


93 CSE 1648 


Becton 


05/19/94 


93 CSE 1649 


Bee ton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1680 


MornBon 


08/26/94 


93 CSE 1714 


Mann 


09/26/94 


93 CSE 1715 


Gray 


05/23/94 


93 CSE 1743 


Nesnow 


07/07/94 


93 CSE 1757 


Morgan 


08/02/94 


93 CSE 1761 


Becton 


06/29/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0141 


Becton 


09/23/94 


94 CSE 0142 


Chess 


08/16/94 


94 CSE 0163 


Mann 


09/26/94 


94 CSE 0166 


Mann 


09/26/94 


94 CSE 0227 


Reilly 


08/22/94 


94 CSE 0247 


Becton 


08/22/94 


94 CSE 0266 


Morgan 


08/02/94 


94 CSE 0280 


Reilly 


08/30/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0402 


Morgan 


08/02/94 


94 CSE 0433 


West 


09/15/94 


94 CSE 0456 


Nesnow 


08/22/94 


94 CSE 0494 


West 


07/29/94 


94 CSE 0639 


Morrison 


08/31/94 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 



Alarm Systems Licensing Board 



Alarm Systems Licensing Board v. George P. Baker 
Patrick P. Sassman v. Alarm Systems Licensing Board 
Christopher F^te v. Alarm Systems Licensing Board 



93 DOJ 0457 


Nesnow 


03/10/94 


94 DOJ 0709 


Chess 


09/12/94 


94 DOJ 0710 


Chess 


09/12/94 



Private Protective Services Board 



Rex Allen Je Series v. Private Protective Services Board 
Larry C. Hopkins v. Private Protective Services Board 
Gregory K. Brooks v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Private Protective Services Board 
Dexter R. Usher v. Private Protective Services Board 
Frankie L. McKoy v. Private Protective Services BoarrJ 
Michael L. Bonner v. Private Protective Services Board 
Johnny R. Dollar v. Private Protective Services Board 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesnow 


05/19/94 


94 DOJ 0360 


Nesnow 


05/19/94 


94 DOJ 0648 


Reilly 


08/15/94 


94 DOJ 0706 


Chess 


09/09/94 


94 DOJ 0794 


Morrison 


09/14/94 


94 DOJ 0796 


Morrison 


08/24/94 



1130 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 

DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Training and Standards Division 

Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Steven W. Wray v. Sheriffs' Education & Training Standards Comm. 
J. Stevan North v. Sheriffs' Education & Training Standaras Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 
Russell Pinkelton Jr. v. Sheriffs' Education & Training Stds. Comm. 
William Franklin Sheetz v. Sheriffs' Education & Training Stds. Comm. 
James M. Buie v. Criminal Justice Ed. & Training Stds. Comm. 
Nelson Falcon v. Sheriffs' Education &. Training Stds. Comm. 

MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, &. Brown's Funeral Directors 
PUBLIC EDUCATION 



93 DOJ 0231 


Chess 


03/28/94 


93 DOJ 1071 


Nesnow 


04/11/94 


93 DOJ 1409 


Gray 


03/03/94 


93 DOJ 1803 


Chess 


06/29/94 


94 DOJ 0040 


Chess 


06/16/94 


94 DOJ 0048 


Gray 


03/29/94 


94 DOJ 0118 


Gray 


08/10/94 


94 DOJ 0196 


Chess 


06/16/94 


94 DOJ 0401 


Nesnow 


08/26/94 


94 DOJ 0611 


Mann 


08/12/94 



93 BMS 0532 



Nancy Watson v. Boatd of Education 93 EDC 0234 

Janet L. Wilcox v. Carteret County Board of Education 93 EDC 0451 

Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 93 EDC 0742 

Mary Ann Sciullo & Frank Sciullo on behalf of their minor child, 94 EDC 0044 
Samuel W Sciullo v. State Boatd of Education 



Chess 



03/28/94 



9:3 NCR 218 



Chess 


02/28/94 


9:2 NCR 


108 


Mann 


02/21/94 






Mann 


08/01/94 


9:11 NCR 


863 


Gray 


07/22/94 







STATE HEALTH BENEFITS OFFICE 



Linda C. Campbell v. Teacheis & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachere' & St Emp Comp Major Med Plan 
P.H.B. v. Teacheis & State Employees Comp Major Medical Plan 

STATE PERSONNEL 

Michael L. K. Benson v. Office of State Personnel 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical Slate University 
Thomas M. Simpson v. Agricultural and Technical State University 
Pricella M. Curtis v. A&T State University Curriculum & Instruction 

Department of Agriculture 

Donald H. Crawfoid v. Department of Agricultuc 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Dianna Blackley v. North Carolina Central University 
Ha-Yilyah Ha-SheB v. NCCU 

Cherry Hospital 

Charles F. Fields v. Cherry Hospital 

Gail Marie Rodgers Lincoln v. Cherry Hospital, Goldsboro, NC 27530 

Department of Commerce 

Ruth Daniel-Perry v. Department of Commerce 



93 INS 0410 


Beaton 


04/22/94 


93 INS 0929 


Morrison 


03/04/94 


94 INS 0345 


Gray 


08/23/94 



93 OSP 1690 



94 OSP 0108 



93 OSP 1097 



89 OSP 0494 
93 OSP 0875 



94 OSP 0498 
94 OSP 0578 



93 OSP 0725 



Nesnow 



Reilly 



Reilly 



Nesnow 
Bee ton 



Morrison 
West 



Chess 



08/23/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 


94 OSP 0748 


Gray 


08/17/94 



05/23/94 



04/29/94 



09/14/94 
04/13/94 



06/15/94 
09/09/94 



03/04/94 



9:12 NCR 945 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1131 



CONTESTED CASE DECISIONS 



agenc v 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Correction 

Leland K. Williams v. Department of Correction 

Elroy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Steven R. Kellison v. Department of Correction 

Bert Esworthy v. Department of Correction 

James J. Lewis v. Department of Correction 

Merron Burrus v. Department of Correction 

Lewis Alsbrook v. Department of Correction, Morrison Youth Institution 

Junius C. J^ge v. Dept. of Correction, Secy. Franklin Freeman 

Richard Hopkins v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 

Adrian E. Graham v. Intensive Probation/Farole 

Barry Lee Clark v. Department of Correction 

Edward E. Hodge v. Department of Correction 

Eastern Correctional Institution 

Roy A. Keel &. Zebedee Taylor v. Eastern Correctional Institution 
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 

Guilford Correctional Center 
Ann R. Williams v. Guilford Correctional Center #4440 

McDowell Correctional Center 

Michael Junior Logan v. Kenneth L. Setzer, McDowell Com Ctr. 

Cosmetic Art Examiners 

Mary Quaintance v. N.C. State Board of Cosmetic Art Examiners 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 
Anthony R. Butler v. Highway F^trol 

Ruth P. Belcher v. Crime Control & Public Safety, State Highway Patrol 
Lewis G. Baker v. Crime Control & Public Safety, Office Adj. General 
William Smith v. State Highway Patrol 

Dorothea Dix Hospital 

Bettie Louise Boykin v. Dorothea Dix Hospital 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

East Carolina School of Medicine 

William Lee Perkins v. ECU Sch of Med. Comp. Med. L. Blankcnship, 
Tammy Barnes, Wm Pyroe 

Elizabeth City State University 

James Charles Knox v. Elizabeth City State University 
Employment Security Commission of North Carolina 
Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 



91 OSP 1287 


Chess 


02/22/94 


92 OSP 1770 


Bee ton 


05/24/94 


93 OSP 0283 


Chess 


06/15/94 


93 OSP 0711 


Chess 


04/21/94 


93 OSP 1121 


West 


08/31/94 


93 OSP 1145 


West 


09/30/94 


93 OSP 1739 


West 


07/20/94 


93 OSP 1794 


Mann 


07/08/94 


94 OSP 0041 


Chess 


06/16/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0244 


Nesnow 


06/16/94 


94 OSP 0261 


Morrison 


04/26/94 


94 OSP 0437 


Chess 


09/12/94 


94 OSP 0829 


Nesnow 


09/15/94 



9:6 NCR 



395 



94 OSP 0160* 1 
94 OSP 0256* 4 



94 OSP 0428 



94 OSP 0546 



94 OSP 0372 



94 OSP 0831 



93 OSP 1780 



94 OSP 0741 



94 OSP 0207 



93 OSP 1069 



Nesnow 
Nesnow 



West 



Gray 



Chess 



Nesnow 



Gray 



West 



Gray 



West 



07/20/94 
07/20/94 



06/22/94 



09/01/94 



06/14/94 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 1463 


Reilly 


03/21/94 


93 OSP 1079 


West 


08/30/94 


94 OSP 0190 


Gray 


09/06/94 


94 OSP 0572 


Mann 


07/12/94 


94 OSP 0816 


Morrison 


09/09/94 



09/28/94 



05/25/94 



09/30/94 



06/17/94 



04/08/94 



1132 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



W 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Environment, Health, and Natural Resources 

Steven P. Karasinski v. Environment, Health, and Natural Resources 93 OSP 0940 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 92 OSP 1454 

Fayetteville State University 

Roscoe L. Williams v. Fayetteville State University 93 OSP 0487 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 

Dr. Patricia Sokol v. James B. Hunt, Governor and Human Resources 

Bruce B. Blackmon, M.D. v. DHR, Disability Determination Services 



Craven County Department of Social Services 

Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cty. 
Nettie Jane Godwin (Lawhorn) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 



Durham County Department of Social Services 

Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 93 OSP 0728 

Ralph A. Williams v. Durham County Department of Social Services 94 OSP 0167 

Haywood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 94 OSP 0186 

Pamlico County Department of Social Services 
Mrs. Dietra C. Jones v. Pamlico Department of Social Services 94 OSP 0251 

Lee County Health Department 
James Shackleton v. Lee County Health Department 94 OSP 0344 

Mental Health/Menial Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 93 OSP 1604 

Wike County Mental Health, Developmental Disabilities, and Substance Abuse Services 

Julia Morgan Brannon v. Wake County MH/DD/SAS 94 OSP 0214 

Smoky Mountain Center 

Betty C. Bradley v. Smoky Mountain Center 93 OSP 1505 

Real Estate Appraisal Board 

Earl Hansford Grubbs v. Appraisal Boaid 94 OSP 0753 

N.C. State University 

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 92 OSP 0828 

Ashraf G. Khalil v. N.C.S.U. 93 OSP 1666 



West 



Bee ton 



West 



Chess 

Reilly 



West 



Chess 



Gray 



Bee ton 



Reilly 



Bee ton 



Nesnow 



Morgan 
Nesnow 



09/02/94 



05/04/94 



06/22/94 



93 OSP 0830 


Bee ton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 


94 OSP 0357 


Chess 


08/22/94 


94 OSP 0410 


Nesnow 


09/14/94 



93 OSP 1606 


Gray 


07/01/94 


93 OSP 1607 


Gray 


07/18/94 


93 OSP 1805 


Reilly 


07/05/94 



04/11/94 
09/13/94 



06/17/94 



08/09/94 



08/17/94 



03/18/94 



04/14/94 



09/26/94 



08/24/94 



05/26/94 
09/19/94 



9:5 NCR 



333 



9:9 NCR 



655 



9:14 NCR 1141 



9.14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1133 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Transportation 

Phyllis W. Newnam v. Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportation 

Betsy Johnston Powell v. Department of Transportation 

Arnold Craig v. Samuel Hunt, Secretary Department of Transportation 

Susan H. Cole v. Department of Transportation, Div. of Motor Vehicles 

Clyde Lem Hairston v. Department of Transportation 

Angela Trueblood Westmoreland v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Tony Lee Curtis v. Department of Transportation 

Darrell H. Wise v. Department of Transportation 

Henry C. Puegh V. Department of Transportation 

Kenneth Ray Harvey v. Department of Transportation 

Bobby R. Mayo v. Department of Transportation 

Michael Bryant v. Department of Transportation 

University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapel Hill 

Beth Anne Miller, R.N.-C v. UNC James A. Taylor Sid Health Svc 

University of North Carolina at Greensboro 

James S. Wilkinson v. UNCG Police Agency 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wake County School System 

Lula Mae Freeman v. Wake County School System 

The \Yhitaker School 



92 OSP 1799 


Morgan 


08/11/94 






93 OSP 0297* 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1001 


Morrison 


09/30/94 


9:14 NCR 


1136 


93 OSP 1004 


Nesnow 


09/01/94 






93 OSP 1037 


Reilly 


08/26/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 






94 OSP 0423 


Morrison 


08/17/94 






94 OSP 0632 


Grav 


08/23/94 






94 OSP 0728 


Chess 


08/15/94 







93 OSP 0925 

94 OSP 0800 



93 OSP 0850 



94 OSP 0509 



94 OSP 0576 



Morrison 
Nesnow 



Chess 



05/03/94 
09/26/94 



08/22/94 



Morrison 06/15/94 



Morrison 06/28/94 



9:5 NCR 



342 



Dwayne R. Cooke v. The Whitaker School 

Winston-Salem State University 

David Phillip Davis v. Winston-Salem State University 

Tonny M. Jarrett v. Winston-Salem State University Campus Police 

STATE TREASURER 



94 OSP 0328 



93 OSP 0947 
93 OSP 0953 



Chess 



Reilly 
Reilly 



06/02/94 



09/28/94 
09/12/94 



Retirement Systems Division 

Molly Wiebenson v. Bd. Trustees/Teachers' & State Employees' Ret. Sys. 
Judith A. Dorman v. Bd.nYustees/Teachers' & State Employees' Ret. Sys. 
Nathan Fields v. Bd.ATrustees/Teachers' & State Employees' Ret. Sys. 
John C. Russell v. Bd./TrusteesATeachers' Si. State Employees' Ret. Sys. 
Marion Franklin Howell v. Teachers' &. State Employees' Retirement Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Connie B. Grant v. Bd.rTrustees/Teaehers' & State Employees' Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd.rTrusteesneachers' & Slate Emps' Ret. Sys. 
Kenneth A. Glenn v. Bd.nYuslees/Teaehers' &. St Employees' Ret. Sys. 
Joseph Fulton v. Bd./Trusteesneachers' & State Employees' Ret. Sys. 
Deborah W. Stewart v. Bd.ATrusteesrreachers' &. State Employees' 

Ret. Sys. and Anthony L. Hope & Derrick L. Hope 



92 DST 0015 


Morgan 


05/26/94 


9:6 NCR 


403 


92 DST 0223 


Morgan 


08/11/94 






93 DST 0161 


Morrison 


05/18/94 






93 DST 0164 


West 


03/07/94 






93 DST 0475 


Nesnow 


08/04/94 


9:12 NCR 


941 


93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 


68 


93 DST 0883 


Chess 


06/15/94 






93 DST 1054 


Bee ton 


05/31/94 


9:7 NCR 


490 


93 DST 1474 


Nesnow 


03/28/94 






93 DST 1612 


Morrison 


05/18/94 






93 DST 1731 


Bee ton 


05/25/94 






94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 


768 



1134 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



DATE OF 
ALJ DECISION 



PUBLISID2D DECISION 
REGISTER CITATION 



TRANSPORTATION 

Taylor &. Murphy Construction Co. , Inc. v. Department of Transportetion 93 DOT 1404 Chess 

UNIVERSITY OF NORTH CAROLINA 



Heather Anne Porter v. State Residence Committee 
Nixon Omolodun v. UNC Physicians and Associates 



92 UNC 0799 
94 UNC 0295 



Nesnow 
Chess 



08/24/94 



08/23/94 
06/27/94 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1135 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 OSP 1001 



ANGELA TRUEBLOOD WESTMORELAND, 
Petitioner, 



\. 



NORTH CAROLINA DEPARTMENT OF 
TRANSPORTATION, 
Respondent, 



RECOMMENDED DECISION 



The appeal of Angela Trueblood Westmoreland, an employee of the North Carolina Department of 
Transportation, was heard by Fred G. Morrison Jr., Senior Administrative Law Judge, Office of 
Administrative Hearings, on May 11, 1994, in Raleigh, North Carolina. After the hearing, the parties filed 
written arguments, proposed findings and conclusions, and pertinent cases. 



APPEARANCES 



FOR THE PETITIONER: 



Abraham Perm Jones 
Attorney at Law 
P.O. Box 326 
Raleigh, NC 27602 



FOR THE RESPONDENT: 



Elaine Humphries 
Assistant Attorney General 
NC Dept. of Justice 
P.O. Box 629 
Raleigh, NC 27602 



ISSUE 

Did the Respondent illegally discriminate against the Petitioner on the basis of her race in not selecting 
her for the position of Accounting Specialist II? 

OPINION OF THE ADMINISTRATIVE LAW JUDGE 

Based on competent evidence admitted at the hearing, the stipulations of the parties, and matters about 
which this agency might take judicial notice, the Administrative Law Judge makes the following: 

FINDINGS OF FACT 

1 . In April 1992, Respondent hired Petitioner, Angela T. Westmoreland, as a Clerk/Typist III (Paygrade 
57) in the office of the Chief Engineer of Pre-Construction. 

2. In December 1992, Petitioner was promoted to the position of Accounting Technician II (Paygrade 
61) in the Contracts Payable Office of the Fiscal Section of DOT. Petitioner's direct supervisor was 
Don Gower, an Accountant II and the head of the Contracts Payable Office. The office also consisted 
of an Accounting Technician I (Paygrade 59) who was a black female who had also been 
recommended by Mr. Gower, a white male. 



1136 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CONTESTED CASE DECISIONS 



3. Between March 26, 1993, and April 8, 1993, Respondent posted a vacancy for the position of 
Accounting Specialist II (Paygrade 69 - Position #00593) in the Contract Payable Office. The 
minimum qualifications for the position were graduation from a four-year college or university with 
a major in accounting or business administration and one year of accounting experience, a two-year 
degree and three years of accounting experience, or graduation from high school and six years of 
experience as an accounting technician. Respondent received 72 applications for this position. 

4. On April 1, 1993, Petitioner applied for the position of Accounting Specialist II. Petitioner, a white 
female, is a 1990 graduate of Meredith College with a B.S. degree in business administration with 
a concentration in accounting. Prior to being employed by DOT in April 1992 as a clerk/typist, 
Petitioner worked for one month in March 1992 as a temporary doing bank reconciliations. During 
college, Petitioner worked one semester in a co-op session for a brokerage firm and one summer for 
a telecommunications company. 

5. Mr. Gower interviewed a total of 22 applicants, including Petitioner, on April 16, 1993. 

6. Mr. Gower recommended to his supervisors that Petitioner be selected for the position of Accounting 
Specialist II. His primary reasons were: 1) Petitioner's four months work experience in the 
Contracts Payable Office during which she had performed well and had shown a great deal of 
potential; 2) the fact that he had been training her to assume additional duties; 3) the fact that she 
received the highest score on a general math/accounting knowledge test he developed for this 
interview process; and 4) she made the best impression at the interview. 

7. Wayne Stallings, the Controller of DOT, reviewed the "position package" and Mr. Gower's 
recommendation of Petitioner. He gave Mr. Gower five minority applications and told him to 
interview three, which Mr. Gower did, but reported that Petitioner remained his top choice. Mr. 
Stallings recommended to his supervisor, Mercidee Benton, the Director of Administration of DOT, 
that a black male applicant be selected. Ms. Benton had the authority to make the final decision. 

8. The black male applicant was a 1973 graduate of North Carolina Central University (NCCU) with 
a B.A. degree in accounting. In 1981, he received a master's degree in business administration from 
NCCU. He had nearly 20 years experience in accounting, including supervisory experience. He had 
a satisfactory score on the "test" administered by Mr. Gower and responded well to the interview 
questions. The applicant did not have state government accounting experience, but because of his 
supervisory experience, Mr. Stallings said he viewed him as a potential successor to Mr. Gower, who 
had expressed interest in being transferred. 

9. Ms. Benton concurred in the recommendation of the black male applicant who was subsequently 
approved for the position. The applicant accepted the offer of employment. In early July 1993, on 
the Friday before the Monday the applicant was to report for work, he informed DOT that he had 
decided to take another position in state government. 

10. Mr. Stallings and Ms. Benton discussed their options and mutually agreed to forward Petitioner's 
name to the DOT Personnel Department for approval for the position of Accounting Specialist II. 
Their decision was based on the fact that Petitioner met the minimum qualifications for the position 
and because Mr. Gower had strongly advocated her selection. Also, additional delay in filling the 
position would further add to the backlog of work in the Contracts Payable office. They had 
previously agreed that Petitioner would be their second choice if Mr. Robinson declined. 

1 1 . Prior to any action being taken by the Personnel Department, Ms. Benton, a black female, received 
a telephone call from Sondra Davis, a black female in the Governor's Office, expressing concern that 
there were persons who had applied for the position that were better qualified than Petitioner. Ms. 
Benton pulled the "package" from the Personnel Department in order to reassess the recommendation 
of Petitioner. 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1137 



CONTESTED CASE DECISIONS 



12. Ms. Benton and Mr. Stallings again discussed their options and decided to re-post the vacancy. Their 
stated reasons were: 1) Mr. Gower's strong opposition to every other applicant in the pool; 2) Mr. 
Gower's strong desire that the selected applicant have state government accounting experience; and 
3) the fact that one applicant with extensive state government accounting experience was not a "viable 
candidate" because of an unfavorable reference. They testified that they hoped to attract additional 
applicants with state government accounting experience by re-posting the position because of the long 
period of time since the original posting. The position was re-posted for state government employees 
only from July 27, 1993, through August 4, 1993. 

13. Petitioner submitted a second application dated July 28, 1993. Respondent received a total of 13 
applications and Mr. Gower interviewed four persons, including Petitioner, on August 9, 1993. Mr. 
Gower again recommended Petitioner for the position, citing her education, highest score on the 
objective test, experience in the office, and interview performance. 

14. Mr. Stallings reviewed the position package. Among the four persons interviewed was Debora 
Morris, a black female, who was a 1981 graduate of East Carolina University with a B.S. degree in 
finance. She also had 27 semester hours in accounting at North Carolina State University in 
preparation for the CPA examination. She also had 11 years of accounting experience in the North 
Carolina Department of Administration, and at the time of her application was an Accounting 
Technician IV. The applicant had a satisfactory score on the "test" administered by Mr. Gower and 
responded well to his interview questions. Mr. Stallings had told Mr. Gower she was the only 
applicant he needed to interview. Ms. Morris had not applied before the re-posting. She had worked 
under Ms. Benton before at DOA. 

15. Mr. Stallings recommended to Ms. Benton that Ms. Morris be selected. Ms. Benton concurred in 
the recommendation which was subsequently approved. The position was offered to and accepted by 
Ms. Morris. 

16. Petitioner and Mr. Gower testified that Mr. Stallings told them that his superiors wanted a black 
employee in the job. Mr. Stallings and Ms. Benton denied that the Accounting Specialist II position 
had to be filled by a minority in order to meet affirmative action goals of the Department or that it 
had been predetermined that the position would be filled by a minority. Fred Aikens, a black male 
who was Deputy Secretary of the Department of Transportation and Ms. Benton's supervisor, testified 
that he never told Mr. Gower that he wanted a minority in the Accounting Specialist II position or 
that he was instructed or compelled by the Governor's Office to select an African -American. Mr. 
Aikens testified that he wanted the best qualified applicant placed in the position. 

17. On September 20, 1993, Petitioner filed a petition for contested case hearing, alleging that she had 
been denied a promotion to the position of Accounting Specialist II and that this denial was based on 
her race. Petitioner is qualified for the job. 

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS 

1. Petitioner Angela Trueblood Westmoreland is covered by G.S. 143-422.2 which provides that: 

It is the public policy of this state to protect and safeguard the right and opportunity of all 
persons to seek, obtain and hold employment without discrimination or abridgement on account of 
race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 
or more employees. 

It is recognized that the practice of denying employment opportunity and discriminating in 
the terms of employment foments domestic strife and unrest, deprives the State of the fullest 
utilization of its capacities for advancement and development, and substantially and adversely affects 
the interests of employees, employers, and the public in general. 



1138 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CONTESTED CASE DECISIONS 



2. G.S. 126-16 mandates that: 

All state departments and agencies . . . shall give equal opportunity for employment and compensation 
without regard to race — to aH persons otherwise qualified. . . . 

3. Petitioner has a right to appeal this adverse employment decision pursuant to G.S. 126-36 which 
provides that: 

(A)ny State employee . . . who has reason to believe that . . . promotion . . . was denied him . . . 
because of his race . . . shall have the right to appeal directly to the State Personnel Commission. 

4. The Office of Administrative Hearings has jurisdiction to hear this matter and issue a recommended 
decision to the State Personnel Commission by authority of G.S. 126-37 which states that "appeals 
involving . . . alleged discrimination . . . shall be conducted in the Office of Administrative 
Hearings. " 

5. Where discrimination is an issue, Petitioner bears the ultimate burden of proof and must establish a 
prima facie case of discrimination by providing sufficient facts in order to raise an inference of 
discrimination. In her effort to establish a prima facie case of discrimination, Petitioner has shown 
that: 

a. She is protected from racial discrimination; 

b. She applied and was qualified for the position; 

c. She was rejected once in favor of a black male; 

d. She was recommended after the black male declined; 

e. Her recommendation was withdrawn by a black female, following a call from a black female 
in the Governor's Office; 

f. The search for job applicants was re-opened which resulted in an application from a qualified 
black female who was given the position; 

g. The successful applicant once worked under the person who withdrew Petitioner's application 
and re-opened the search; and 

h. Petitioner made the highest score on an objective test and was highly recommended twice by 

the supervisor for the subject position. 

Thus, Petitioner has established a prima facie case of illegal discrimination on the basis of race. 

6. Respondent, on the other hand, has given nondiscriminatory reasons for its decision to promote 
Debora Morris rather than the Petitioner. Respondent's given reasons were Morris' application, her 
prior experience, a favorable interview, good recommendations as well as concern expressed by the 
Governor's Office about Petitioner's experience; also, an opinion that she was best qualified for the 
job. 

7. Since the Respondent has given nondiscriminatory reasons for its decision, Petitioner has the burden 
of proving that such reasons were merely a pretext for illegal discrimination. To meet this burden, 
Petitioner may rely upon the evidence used to establish her prima facie case which evidence satisfies 
this trier of fact that Respondent's stated reasons were merely a pretext for intentional discrimination. 

8. Petitioner was denied the position because of her race. 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1139 



CONTESTED CASE DECISIONS 



Based on the foregoing Findings of Fact and Conclusions, the Administrative Law Judge makes the 

following: 

RECOMMENDED DECISION 

It is recommended that Petitioner be promoted to the grade and step merited with back pay, front pay, 
and attorney's fees. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and 
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 30th day of September, 1994. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



1140 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF CLAY 



IN THE OFFICE OF 

ADMINISTRATTVE HEARINGS 

93 OSP 1505 



BETTY C BRADLEY, 
Petitioner, 



SMOKY MOUNTAIN CENTER, 
Respondent, 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on April 7 and 8, 1994 
and May 26 and 27, 1994 in Asheville, North Carolina. The record in the matter was closed on August 12, 
1994. 

APPEARANCES 

Petitioner: JOHN R. MULL, Attorney at Law, Morganton, North Carolina; John R. Mull and 

Steven M. Kurzer appearing. 

Respondent: COWARD, HICKS & SILER, Attorneys at Law, Sylva, North Carolina; J.K. 
Coward, Jr., appearing. 

ISSUES 

1. Whether Smoky Mountain Center followed proper policy and procedure in the development and 
implementation of the reduction in force for the Amelia Bauer-Khan Psychiatric Unit ("Unit") of the 
Angel Community Hospital ("Hospital") in Franklin, North Carolina. 

2. Whether the reduction in force was systematically and fairly applied to the employees of the affected 
Unit. 

SUMMARY OF DECISION 

The Respondent dismissed the Petitioner from her position as an Accounting Clerk IV as part of a 
reduction in force ("RIF"). The evidence does not support the Petitioner's contentions that the Respondent 
failed to follow certain state rules and/or regulations in developing and implementing its RIF policy and that 
some of the "RIFed" employees were treated more favorably than she was during the RIF process. Therefore, 
the undersigned recommends that the Respondent's decision to terminate the Petitioner's employment be 
affirmed. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1. The Respondent, Smoky Mountain Center for Mental Health, Developmental Disability, and 

Substance Abuse Services, is an "Area Authority" which serves the seven counties in the westernmost 
part of North Carolina. It was established pursuant to the provisions of North Carolina General 
Statutes section 122C which provides for the establishment of a service delivery system for individuals 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1141 



CONTESTED CASE DECISIONS 



with mental illnesses, developmental disabilities and/or substance abuse problems. In addition to 
operating a central office and an inpatient care facility, the Respondent provides out-patient services 
at centers located in each of the several counties it serves. 

2. The Respondent's activities are overseen by an area board of directors ("Board") which meets on a 
monthly basis. The meetings are open to the public. An agenda with minutes from the previous 
meeting and enclosures for the upcoming meeting is mailed to each member of the Board prior to the 

meetings. 

3. Hugh Moon is the Respondent's area director. The area director is appointed by the Board, and he 
is the chief executive officer of the Area Authority. 

4. The Respondent operated the Unit pursuant to a contract with the Hospital in Franklin, North 
Carolina. 

5. The Unit was a secure facility on one floor of the Hospital. Patients who were admitted to the Unit 
were treated by the Respondent's employees. That staff included a psychiatrist, a psychologist, 
medical nurses and aids, and support staff. 

6. The Petitioner's designated job classification was Accounting Clerk IV; her job description was 
Reimbursement Officer; and she was referred to by herself and on her performance evaluations as the 
Finance Officer for the Unit. 

7. The Petitioner's main job was collecting accounts receivable, a large part of which came from third 
party reimbursement for services rendered by the Respondent. She was also in charge of inventory 
control, purchasing of dietary supplies, keeping time sheets for physicians, and keeping a calendar 
for "on call" workers. 

8. During the early 1990's, several national trends began to impact upon the Respondent's operation of 
the Unit at the Hospital. First, the cost of hospital care continued to escalate annually. Second, the 
patient population for inpatient treatment continued to decline. Third, alternative community based 
services were emerging as the preferred method of treatment by health care providers and consumers. 
As a result, the Unit cost more and more to operate and simultaneously became less effective in 
delivering services. 

9. For approximately five years prior to the RIF implemented at the Unit effective June 30, 1993, the 
Respondent's management had begun developing community based alternative services to inpatient 
care because management felt that it could offer the community based services mandated under the 
law on a more cost-effective basis and with a higher degree of success on an out-patient basis. This 
proposed shift to out-patient community based services was consistent with nationwide trends. 

10. The future of the Unit was discussed at nearly every board meeting from about the middle of 1992 
until its closure in 1993. A detailed financial analysis of the Unit was always presented by the 
Respondent's director of financial services, Thomas W. McDevitt, C.P.A., at the meetings whenever 
the Unit was discussed. The Board was acutely aware that the Unit's financial picture was not good. 

1 1. The director of the Respondent's community based services, Ronald W. Yowell, M.S.W., kept the 

Board abreast of the evolving nature of services being provided to the Respondent's clients, and in 
particular, how the Respondent was gradually shifting its delivery system from an inpatient setting 
to an out-patient one. That is, services that might otherwise be offered in inpatient treatment settings 
would be offered in the community at local county centers, in local hospitals, and in client's homes, 
etc. 

12. The Board considered the Unit's financial situation over a long period of time. Its first attempt to 

save the Unit occurred in 1992 when the Unit was downsized. Some employees were terminated 



1142 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CONTESTED CASE DECISIONS 



during the 1992 RIF. Other employees' job functions were changed, and still other employees began 
to devote more time to out-patient services. 

13. In the interim between the 1992 downsize RIF and the 1993 closure RIF, several staffing changes 
were made. Among the measures undertaken were: 

The staff psychologist, Mike Penland, Ph.D., feeling that it was inevitable 
that the Unit would have to be closed, began assuming out-patient responsi- 
bilities. By February, 1993, Dr. Penland was working 80% of his time on 
outpatient services as community based alternative services were being 
developed and put into place. 

Mark Lawrence, M.D , the staff psychiatrist and administrative head of the 
Unit, also felt that closure of the Unit was inevitable and by the time of the 
1993 RIF, a portion of his practice was focused toward community based 
alternative services. 

As a result of the 1992 RIF, Rita Colvard, the director of nursing on the 
Unit in 1992 and 1993, began working on providing out-patient services 
50% of the time in Swain, Cherokee, and Graham Counties. By the time 
of the 1993 RIF, she was devoting more than 50% of her time to out-patient 
services. 

14. Mr. McDevitt discussed numerous RIF issues with the Petitioner during the 1992 RIF. She received 
a phone call from him prior to the 1992 RIF during which he explained that her job might be 
eliminated during the 1992 RIF. The Petitioner protested and after further deliberations, it was 
decided to let her divide her time by working at one of the out-patient centers on a 50% basis. She 
also protested that decision. Finally it was agreed to allow her to stay on the Unit, but she had to 
assume some new responsibilities, some of which were of an entry level nature. 

15. When the Unit continued to be cost ineffective, despite the Petitioner's valiant efforts at cutting costs 
and being more aggressive in seeking reimbursements, the Board decided it was necessary to close 
the Unit rather than to continue to operate it at a loss. 

16. Upon approval of the RIF by the Board, the Board directed the necessary expansion of community 
based services to offset the loss of inpatient services. In addition, Broughton State Hospital was 
willing to accept long term patients for inpatient care and arrangements were made for short term 
emergency care in local hospitals. 

17. After the Board adopted the resolution regarding the closing of the Unit, Brenda Rhoads, the 
Respondent's personnel director, was assigned the responsibility of drafting the RIF policy. After 
the policy was reviewed and approved by the executive committee, she was responsible for seeing that 
the policy was implemented on the Unit. 

18. Mr. Moon prepared a memorandum regarding the 1993 RIF policy which Ms. Rhoads attached to the 
policy. Both of those documents were delivered to each of the Unit employees. 

19. Ms. Rhoads and Mr. Yowell presented the 1993 RIF policy to the affected Unit at a meeting of the 
employees on April 29, 1993. 

20. The Petitioner was not present at that meeting, but on the next day Ms. Rhoads spoke with the 
Petitioner on the telephone and informed her about the policy. She also mailed the Petitioner a copy 
of the policy and Mr. Moon's memorandum. The Petitioner also received a copy of the policy and 
the memorandum in the mail along with her paycheck in April. 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1143 



CONTESTED CASE DECISIONS 



21 . Pursuant to the Respondent's personnel policies and procedures which are included in the October 1, 
1991 version of the Employee Handbook, the Respondent develops a specific RIF policy to ensure 
non-discrimination each time a RIF is necessary. 

22. The Respondent maintained a Personnel Policies and Procedures Manual. A copy of this manual was 
located in the Unit and it was available for inspection by all employees. Dr. PenJand was the chair 
of the committee that was responsible for reviewing the manual annually. It was updated regularly. 

23. The North Carolina State Personnel Commission has adopted rules and regulations that are applicable 
to local government employees who are subject to the State Personnel Act. Those rules and 
regulations are published in the Personnel Manual for Local Government Employees Subject to the 
State Personnel Act and are codified in title 25 of the North Carolina Administrative Code. 

24. The Department of Human Resources has developed guidelines, known as Personnel Directive 
Number 5, for RIFs involving that agency's employees. 

25. Prior to the implementation of the June 30, 1993, RIF, the Petitioner informed her superiors that she 
would be unable to complete her job responsibilities by the RIF date. After several consultations, 
Tom McDevitt agreed, on behalf of the Respondent, to contract with the Petitioner for salary, 
insurance, and benefit continuation through the month of July, 1993, in order to enable the Petitioner 
to complete her job responsibilities to the best of her ability. 

26. During the course of these proceedings, the Petitioner has contended that the Respondent did not 
follow proper policy and procedure in the development and implementation of the RIF at the Unit in 
June, 1993; that the RIF was not effectuated in a fair and systematic manner in that in her opinion 
some employees were given preferential treatment; and that the Respondent failed to carry out its 
obligation to assist the Petitioner in securing other employment. 

27. All the employees of the Unit were affected by the RIF, and approximately 35 employees lost their 
jobs. 

28. Martha Geouge, personnel director for the Department of Human Resources' Western Regional 
Personnel Office, wrote Mr. Moon a letter in which she stated that "the rules adopted by the State 
Personnel Commission which apply to area mental health programs do not require that the agency 
adopt a [standing] reduction in force policy." 

29. The Respondent's policy regarding RIFs was that anytime a reduction in force was necessary, a 
specific policy for the affected unit would be developed by the Respondent to address the specific 
needs of the reduction. 

30. During the 1993 RIF, the Respondent permitted flexible work schedules over several weeks prior to 
the RIF in order to assist the employees in locating and securing jobs. 

31. Upon the closure of the Unit in June, 1993, three Unit employees, Mike Penland, Mark Lawrence, 
and Rita Colvard, who had been performing some outpatient services on a part-time basis, began 
working in out-patient positions on a full-time basis. 

32. Dr. Penland did not miss any time from employment with the Respondent as a result of the 1993 RIF, 
and he was not required to apply for the out-patient position he assumed after the RIF was 
implemented. 

33. Dr. Lawrence was transferred to full-time out-patient responsibilities as a consequence of the 1993 
RIF. He did not miss any time from work and did not have to apply for the position he assumed 
when the Unit was closed. 



1144 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CONTESTED CASE DECISIONS 



34. Dr. Lawrence was the only physician affected by the RIF. He was assigned to community based 
services at a reduced salary because he was no longer an administrative director of the Unit. 

35. Rita Colvard did not miss any time from work as a result of the RIF and she did not apply for the 
full-time out-patient position she was transferred to when the Unit was closed. 

36. A staff development position was developed by the Respondent in early 1993 because it felt that one 
person might more efficiently handle the functions of staff development. Those function include staff 
development, credentialing & privileging, orientation, risk management, etc. The Respondent 
developed a job description and classification with the state personnel office. The Respondent 
announced a job position and over thirty applications were received. 

37. The Petitioner applied for the staff development position and she completed a job interview. 
However, a task group which had been established to analyze the need for the position recommended 
in July, 1993, after the RIF had been implemented, that the responsibilities of the Staff Development 
Director position could be achieved through the task group rather than filling the new position. 

38. Mr. Yowell testified that the Petitioner was not fully qualified to fill the position, and even if the 
position had been filled, she would not have received it for a number of reasons, chief of which was 
the lack of training and other necessary experience. 

39. The Petitioner was made aware of several job opening, for which she would have qualified and in 
which she would have had placement priorities, but she did not apply for those positions because she 
thought that they would result in a significant drop in salary, they were not commensurate with her 
education and experience, and she was not interested in returning to work at one of the community 
centers. By the time she applied and interviewed for the staff development position, which was 
ultimately not filled, the 1993 RIF was already completed. 

40. George Davis is in charge of Respondent's medical records. During 1992 and 1993 as community 
based alternative services were developed, it became necessary to create two additional medical 
records support staff positions in order to process the medical records that would be generated in 
community based alternative services. Applications were made for the positions that were created 
and those positions were filled. These positions were not created in order to continue employment 
of any specific employee. 

41. Wanda Frady was a Clerk Typist III on the Unit and she was called the office manager. She was a 
jack of all trades and she was employed there during the 1992 RIF and during the 1993 RIF. In 
1992, she had to pick up additional responsibilities because of the elimination of some of the positions 
on the Unit. 

42. Ms. Frady received a written copy of the RIF policy and the announcement of the RIF in April, 1993. 
She was affected. When she saw a job announcement posted on the bulletin board at the Unit for a 
Clerk Receptionist III and Medical Records III, she applied for the positions. She was offered a 
position. 

43. Ms. Frady did not feel that a job had been created for her of that a job was waiting for her at the end 
of the 1993 RIF. She was aware that the Petitioner could exercise priority placement over her if she 
applied for the same job. 

44. Virginia Arnold was a secretary at the Unit. As a result of the 1992 RIF, she began working 50% 
at the Unit and 25% in outpatient services. During the 1993, her position at the Unit was terminated. 
The RIF policy was explained to her by Brenda Rhoads. She received a written copy of the policy 
and discussed it with other employees. 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1145 



CONTESTED CASE DECISIONS 



45. Ms. Arnold applied for and was offered one of the jobs posted by the Respondent. The job was not 
created for her and at not time did she think that the job was waiting for her at the effective date of 
the RIF. The Petitioner would have been entitled to priority placement over Ms. Arnold for any 
vacancy that they both applied for. 

46. On August 6, 1993, the Petitioner initiated a series of correspondence between herself and Hugh 
Moon. The Petitioner made reference to asserting her claim to any position within the reduction unit 
held by any employee with a retention score less than hers and also asserting her priority placement 
rights pursuant to Paragraph 6 of the Respondent's RIF policy. 

47. Paragraph #6 of the 1993 RIF policy did not contain any reference to priority placement rights. 

48. Mr. Moon responded to the Petitioner's letter by informing her that the Paragraph 6 she referred to 
was from a previous RIF policy and was not the policy governing the 1993 RIF involving the Unit. 
He enclosed another copy of the RIF policy and informed the Petitioner that a position had become 
vacant at Child and Family Services that Petitioner was entitled to priority consideration for if she 
was interested. 

49. In her next letter to Mr. Moon, the Petitioner notified the Respondent of her desire to appeal her 
dismissal and again referred to language from RIF policies that were developed for other reductions 
in force during previous years. 

50. The Petitioner, her husband, Mr. Moon, and Ms. Rhoads met in Mr. Moon's office on August 26, 
1993 to discuss the issues raised in the various correspondence back and forth between the Petitioner 
and Mr. Moon. Mr. Moon asked the Petitioner what she wanted, and she responded: 1) a position 
equivalent in classification and salary to that which she had held prior to the 1993 RIF; and 2) the 
matter should be discussed with her attorney. 

51. Mr. Moon decided that the Petitioner's demands were inappropriate and, in his opinion, would have 
resulted in an incorrect application of the RIF policy within the Unit and he denied the Petitioner's 
demands. He brought his decision to the Board's attention, and his decision was affirmed by the 
Board. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 

following: 

CONCLUSIONS OF LAW 

1 . All of the appropriate parties are properly before the undersigned administrative law judge, and the 
Office of Administrative Hearings has jurisdiction over the parties and of the subject matter of this 
hearing. 

2. The Respondent is an Area Authority operating pursuant to the provisions of North Carolina General 
Statutes section 122C. 

3. The Respondent is subject to the Personnel Rules for Local Government Employees Subject to the 
State Personnel Act which are codified in title 25, subchapter II of the North Carolina Administrative 
Code. 

4. The Respondent is not subject to the rules promulgated by the State Personnel Commission for state 
employees , nor is it subject to the Department of Human Resources' Personnel Directive Number 5. 

5. The Respondent had ample criteria to decide to implement a reduction in force due to lack of funds 
and reorganization and correctly designated the affected unit. 25 NCAC II .2005 (1992). 



1146 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CONTESTED CASE DECISIONS 



6. The 1993 RIF policy identified all of the positions on the Unit as those affected by the RIF. It 
identified the reasons for the RIF. It gave the effective date. It described how the RIF would affect 
the employees and what their rights and expectations were. It explained the expansion of community 
based services. It gave specific instructions regarding how the affected employees could appeal their 
separation. It reminded the employees to seek the assistance of the personnel office for securing other 
employment. Therefore, the undersigned concludes that the Respondent fairly and systematically 
developed its RIF policy. 

7. The Petitioner has alleged that some jobs were created especially for particular people and that they 
received preferential treatment. The evidence indicates that the Petitioner was the only person in an 
Accounting Clerk IV position at the Unit. Any duty the Respondent might have had to assess such 
factors as her length of service and relative efficiency was superfluous since the Petitioner was the 
only member in her classification who was affected by the RIF. To establish that she has been treated 
inequitably, the Petitioner can only point to how she was treated vis a vis others in her job 
classification, Accounting Clerk IV, and not to how she was treated vis a vis employees in other job 
classifications. 

8. However, even vis a vis employees in different job classifications, the evidence establishes that the 
Respondent has reasonable grounds for making a transition from inpatient treatment to community 
based out-patient treatment and for transferring those employees from the Unit that it could utilize to 
provide the out-patient treatment. 

9. The procedure followed by the Respondent in developing and implementing the 1993 RIF policy was 
a fair and systematic one. There are no facts indicating that the Petitioner was unfairly singled out 
for separation, or that she was a victim of hasty or careless decision-making. The Petitioner is not 
the only employee who was terminated. The Respondent sought out and considered all the available 
data in arriving at its decision to close the Unit and to expand its community based out-patient 
services. 

RECOMMENDED DECISION 

The State Personnel Commission will issue an advisory opinion to the local appointing authority which 
will make the Final Decision in this contested case. It is recommended that the Commission adopt the 
Findings of Fact and Conclusions of Law set forth above and affirm the Respondent's decision to terminate 
the Petitioner's employment. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the State Personnel Commision makes its advisory decision, it shall give each party an 
opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those 
in the agency who will make the Commission's advisory decision. 

The local appointing authority is required by North Carolina General Statutes section 150B-36(b) to 
serve a copy of its Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 



This the 26th day of September, 1994. 



Brenda B. Becton 
Administrative Law Judge 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1147 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdhisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1148 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



CUMULATIVE INDEX 



Pages 



CUMULATIVE INDEX 

(April 1994 - March 1995) 



Issue 



1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 

504 - 587 8 - July 

588 - 666 9 - August 

667 - 779 10 - August 

780 - 876 11 - September 

877 - 956 12 - September 

957 - 1062 13 - October 

1063 - 1151 14 - October 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

State Employees Combined Campaign, 878 

AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Banking Commission, 884 
Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

CULTURAL RESOURCES 

Arts Council, 960 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443, 825 

DEM/ Air Quality, 80, 805 

Departmental Rules, 254 

Environmental Management, 81, 258, 352, 616, 959 

Health Services, 323, 370, 445, 834, 913, 1000, 1112 

Marine Fisheries Commission, 820, 989, 1109 

Mining Commission, 442 

NPDES Permit, 3, 232 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364 

Water Resources, 165, 255 



9:14 



NORTH CAROLINA REGISTER 



October 14, 1994 



1149 



J L 



CUMULATIVE INDEX 



Wildlife Resources Commission, 38, 42, 84, 358, 830, 910, 999 
Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594, 958 

GENERAL STATUTES 

Chapter 150B, 780 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667, 877, 957 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Departmental Rules, 668 

Facility Services, 4, 128, 423, 509, 668, 890 

Medical Assistance, 318, 440, 513, 597, 964 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430, 961, 

1063 
Social Services, 136, 595, 802 
Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99, 1030 

LNSURANCE 

Actuarial Services Division, 1072 
Agent Services Division, 1065 
Departmental Rules, 891 
Financial Evaluation Division, 892 
Life and Health Division, 525, 905, 1071 
Medical Database Commission, 605 
Multiple Employer Welfare Arrangements, 76 
Property and Casualty Division, 892 
Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614, 804 

Criminal Justice Education and Training Standards Commission, 149, 981 

Private Protective Services, 802 

Sheriffs' Education & Training Standards Commission, 670, 986, 1075 

State Bureau of Investigation, 234, 530 

LABOR 

Boiler and Pressure Vessel, 1076 
Mine and Quarry Division, 239 
OSHA, 77, 160, 675, 906 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 
Auctioneers Licensing Board, 836 
Barber Examiners, 563 



1150 9:14 NORTH CAROLINA REGISTER October 14, 1994 



CUMULATIVE INDEX 



Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280, 1027 

Dietetics/Nutrition, 1115 

Landscape Architects, Board of, 95 

Medical Examiners, 192, 565, 1119 

Mortuary Science, 720, 1120 

Nursing, Board of, 45, 724 

Opticians, Board of, 845 

Optometry, Board of Examiners, 194 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surveyors, 728, 924 

Sanitarian Examiners, 730 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742, 926, 1041 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540, 920 

SECRETARY OF STATE 

Land Records Management Division, 712 
Notary Public Division, 1112 
Securities Division, 476, 616, 709 

STATE PERSONNEL 

Office of State Personnel, 477, 847 



' 



TAX REVIEW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85, 718, 923, 1114 
Motor Vehicles, Division of, 89, 276, 542 



9:14 NORTH CAROLINA REGISTER October 14, 1994 1151 



NORTH CAROLINA ADMINISTRATIVE CODE 



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